UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


<    c  BECKTOLD 

SPrintlngiBookM'J'g; 


LEADING 


CASES    SIMPLIFIED. 


A  COLLECTION  OP  THB 


LEADING  CASES  OF  THE  COMMON  LAW. 


BT 


JOHN    D.    LAWSON, 

Author  of  "  Words  and  Phrases  Judicially  Constnied,"  "  The 

Law  of  Usaries  and  Customs,"  "  The  Contracts 

of  Common  Carriers,"  etc.,  etc. 


SAN   FRANCISCO: 
BANCROFT-WHITNEY    COMPANY, 

Law  Publishers  and  Law  Booksellbbs, 

1892. 


\^-^ 


Entered  according  to  Act  of  Congress,  in  the  year  1S82,  by 

JOIIX  D.  LAWSON, 
In  the  OflQce  of  the  Librarian  of  Congress,  at  "Washington. 


^  .-  /-/ 


4 


PREFACE. 


An  endeavor  has  been  made  in  the  following  pages  to 
present  the  Leading  Cases  of  the  Common  Law  —  the  land- 
marks of  the  law  of  to-day  in  the  States  of  the  Union  —  in  a 
clear,  concise  and  semi-humorous  style.  While  this  book  is 
more  particularly  intended  for  the  law  student,  it  is  hoped 
that  (if  he  can  be  induced  to  read  it)  the  general  reader  will 
find  it  interesting,  and  it  is  promised  that  (if  he  cannot  be 
prevented  from  reading  it)  the  busy  practitioner  will  find  it 
both  entertaining  and  profitable. 

In  this  little  book  I  have  aimed  at  these  results :  L  To  give 
the  student  a  collection  of  the  acknowledged  leading  cases  of 
the  common  law.  2.  To  present  these  in  a  style  which  shaU 
arrest  his  attention,  render  it  possible  for  him  to  acquire 
their  principles  readily,  and  fix  those  principles  in  his  mind 
unincumbered  by  unimportant  and  sometimes  unintelUgible 
facts.  To  this  end  only  the  really  leading  cases  have  been 
selected,  and  these,  instead  of  being  some  fifty  or  sixty,  num- 
ber in  all  over  two  hundred,  and  embrace  nearly  every  branch 
of  the  common  law  of  the  land.  To  this  end,  also,  correct- 
ness of  statement  has  been  adhered  to,  and  humor  has  never 
been  indulged  in  at  the  expense  of  truth.  Therefore,  this 
work  differs  essentiall}'-  from  a  work  like  the  "  Comic  Black- 
stone,"  in  this,  that  while  in  that  the  principles  of  the  law  are 
parodied,  here  the  facts,  the  result,  the  principles  settled 

(iii) 


IV  PREFACE. 

and  the  reasons  given,  are  stated  as  they  are  found  in  Coke 
and  Story  and  Kent,  and  to  the  same  end  I  have  arranged 
the  cases  in  logical  order,  so  that  the  law  may  be  studied 
systematically  and  without  confusing  the  many  different 
points  which  they  decide.  In  adopting  the  semi-humorous 
vein,  I  have  tried  to  make  the  study  of  the  law  less  dry  to 
the  student  than,  as  a  rule,  it  generally  is. 

In  bringing  tlie  following  pages  more  particularly  to  the 
notice  of  the  "student,"  I  am  keeping  in  mind  the  fact 
that  one  docs  not  cease  to  be  a  student  by  being  admitted  to 
the  bar. 

It  is  an  old  saying  that  there  is  no  rule  without  an  excep- 
tion, and  I  believe  that  this  maxim  is  nowhere  better 
illustrated  than  it  is  by  the  rules  of  the  common  law.  Many 
of  these  exceptions  the  student  will  find  stated  in  the  cases 
themselves,  others  of  them  again  in  the  occasional  notes  to 
the  cases. 

In  conclusion,  I  desire  to  express  my  obligations  to  Mr. 
Shirley,  the  author  of  the  English  work,  Leading  Cases 
Made  Easy,  for  the  most  of  Smith's  Leading  Cases,  which  I 
have  either  rewritten  or  adapted,  and  also  for  several  later 
ones.  J.  D.  L. 

St.  Louis,  Mo.,  June,  1882. 


cokte:n^ts. 


PART  I.  —  Formation  of  Contract. 

PAGE. 

Two  Requisites  to  Contract,  viz.,  Proposal  and  Assent  — 

White  V.  Corlies ^ 

Bartholomew  v.  Jackson 2 

Proposal  Cannot  be  Retracted  After  Acceptance  — 

Boston  and  Maine  B.  Co.  v.  Bartlett        ....      3 

Bidding  at  Auctions  — 

Payne  v.  Cave ^ 

Proposer    May    Prescribe    Time,    Place    and    Form    of 
Acceptance  — 

Eliason  v.  Henshaw ^ 

Maclay  v.  Harvey ^ 

But  not  of  Refusal  — 

Felthouse  v.  Bindley 8 

Offer  must  be  Accepted  within  Reasonable  Time  — 

Loring  v.  City  of  Boston 9 

Contracts  by  Post  — 

Adams  v.  Lindsell ^^ 

Tayloe  v.  Merchants  Fire  Ins.  Co 12 

Household  Fire  Ins.  Co.  \.  Grant 1* 

Uncertain  Agreement  does  not  make  Contract  — 

Sherman  v.  Kitsmiller 16 

Zaleski  v.  Clark 18 

Acceptance  must  be  Identical  with  Offer  — 

Jordan  v.  Norton 19 

Acceptance  of  Altered  Proposal  — 

Borland  v.  Chiffey 20 

Proposal  to  Unascertained  Person  — 

Williams  v.  Carwardine 22 

(V) 


VI  CONTEXTS. 

PACrE. 

Mistake  as  to  Pkhsox  Contracting  — 

Boston  Ice  Co.  v.  Potter 23 

Mistake  as  to  Subject  Matter  — 

Kyle  V.  Kavanaugh 25 

Kepresextations  and  Warranties  — 

Behn  V.  Burness 26 


PART  II.  —  Consideration. 

A  Consideration  Necessary  to  Support  a  Contract  — 

Bann  v.  Hughes 2S 

Adequacy  op  Consideration  Immaterial  — 

Bainbridge  v.  Firmstone 29 

But  Consideration  jiust  be  Real  — 

White  V.  Bluett 30 

Forbearance  to  Sue  a  Sufficient  Consideration  — 

Hockenbury  v.  Meyers 32 

PRO^^DED  there  is  a  Legal  Cause  of  Action  — 

Palfrey  v.  Portland,  etc.,  B.  Co 32 

Promise  to  do  what  Party  is  Bound  to  do,  Insufficient  — 

Eeynolds  v.  Nugent 34 

Cumber  v.  Wane 35 

MoRAX  Obligation  Insufficient  — 

Cook  V.  Bradley 3S 

Beaumont  v.  Beeve 37 

Past  Consideration  — 

Bulkley  v.  Landon 38 

Lampleigh  v.  Brathwait 39 


PART  III.  —  Parties. 

Contracts  of  Infants  Voidable  and  Void  — 

Fetrow  v.  Wiseman 41 

Except  for  Necessaries  — 

Peters  v.  Fleming 42 

Hunt  V.  Peake 43 


CONTENTS.  VII 

PAGE. 

Husband  and  Wife  — 

Manhy  v.  Scott 46 

Montagu  v.  Benedict 46 

Seaton  v.  Benedict 47 

Debenham  v.  Mellon 47 

CONTBACTS  OF  LUNATICS  — 

Mitchell  V.  Kingman 60 

Baxter  v.  Portsmouth 61 

Krom  V.  Schoonmaker 62 

Contracts  of  Corporations  — 

Bank  of  Columbia  v.  Patterson 53 


PART  rV.  —  The  Statute  of  Frauds. 

Promise  to  Answer  for  "  Debt,  Default,  or  Miscarriage  " 
OF  Another  — 

Birkmyr  v.  Darnell 67 

Promise  "  in  Consideration  of  "  Marriage  — 

Short  V.  Stotts 69 

"Interest  in  or  Concerning  Lands  "  — 

Crosby  v.  Wadsworth 69 

Contracts  "  not  to  be  Performed  within  a  Year  "  — 

Peter  v.  Compton 60 

Consideration  must  be  Expressed  — 

Wain  V.  Warlters 62 

Promise  to  Answer  for  Debt,  etc.,  op  "Another  "  — 

Eastwood  V.  Kenyan 63 

"  Goods,  Wares,  and  Merchandise  "  — 

Tisdale  v.  Harris 65 

Goods  not  in  Existence  — 

Lee  V.  Griffin 66 

Value  of  Goods  — 

Baldey  v.  Parker 67 

Acceptance  and  Receipt  — 

Elmore  v.  Stone 68 

Shindler  v.  Houston 70 

Contract  Contained  in  Several  Documents  — 

Boy  dell  v.  Drummond 71 


VIU  CONTENTS. 

PART  V.  —  "Written  Contracts  and  Oral  Evidence. 

rAGE. 

Oral  Evidence  not  Admissible  — 

Ooss  V.  Nugent 74 

Pym  V.  Campbell 76 

Latent  Ambiguity  may  be  Explained — 

Sargent  v.  Adams 77 

But  not  '*  Patent  Ambiguity"  — 

Aspden^s  Estate 78 

Supplementary  Contract  may  be  shown  — 

Malpas  V.  London,  etc.,  li.  Co 79 

Usages  of  Trade  may  be  Shown  — 

Cooper  V.  Kane 80 

Soutier  v.  Kellerman 81 

Usage  must  not  Contradict  Contract  — 

Blackett  V.  Boyal  Exchange  Ass.  Co 86 

PART  VI.  —  Illegal  Contracts. 

Contracts  to  Prevent  Competition  — 

Qulick  V.  Ward 87 

Agreements  to  Influence  Officials  — 

Tool  Co.  V.  Norris 88 

Contracts  Impeding  the  Administration  of  Justice  — 

Collins  V.  Blantem 89 

Scott  V.  Avery 91 

Contracts  Violating  Law — 

Cowan  V.  Milhourn 92 

Contracts  Violating  Statutes — 

Pattee  v.  Greeley 93 

Immoral  Contracts  — 

Pearce  v.  Brooks ,        ,    96 

Wagers  — 

Good  V.  EllioU 96 

Contracts  in  Restraint  of  Trade  — 

Alger  v.  Thacher 98 

Mitchel  V.  Beynolds 101 


CONTENTS.  IX 

PAGE. 

Contracts  in  Restraint  of  Marriage — 

Lowe  V.  Peers 102 

Marriage  Brokage  Contracts  — 

Crawford  v.  Bussell 103 

Court  will  not  aid  Either  Party  — 

Holraan  v.  Johnson 106 

Except  where  Illegal  Purpose  is  not  Completed  — 

Spring  Co.  v.  Knowlton 108 

PART  VII.  —  Performance  of  Contracts. 

Discharge  by  Act  of  Promisee  — 

Peck  V.  United  States 110 

Discharge  by  Act  of  Law  — 

Baily  v.  De  Crespigny HI 

Impossibility  of  Performance  — 

Taylor  V.  Caldwell 113 

Impossibility  by  Act  of  God  — 

Bobinson  v.  Davison H* 

Dewey  v.  Union  School  District 116 

Renunciation  Before  Performance  gives  Right  to  Sue  — 

Eochster  v.  De  La  Tour 117 

Frost  V.  Knight 118 

Construction  of  Contracts  — 

Boe  V.  Tranmar 119 

Breach  of  Promise  of  Marriage  — 

Wrightman  v.  Coates 120 

Atchinson  v.  Baker 121 

Willard  v.  Stone 122 

An  Entire  Contract  cannot  be  Apportioned — 

Cutter  V.  Powell        .        . 123 

Measure  of  Damages  on  Breach  of  Contract  — 

Hadley  v.  Baxendale 125 

Penalties  and  Liquidated  Damages — 

Kemble  v.  Farren 126 

Fraudulent  Conveyances  — 

Twyne's  Case  .........  128 


X  CONTENTS. 

PAGE. 

Becovery  of  Moxey  Paid  under  Mistake  — 

Marriott  v.  Hampton 130 

PART  Vin.— Sales. 

When  Sale  Complete,  Property  Passes  at  Once  — 

Tarling  v.  Baxter 132 

Unless  SomethixCx  Remains  to  be  done  — 

Gihhs  V.  Benjamin 133 

Warranties  — 

Chandelor  v.  Lopus 134 

Implkd  Warranty  of  Quality  of  Goods  — 

Jones  V.  Just     .......••  136 

Warranty  must  be  During  Course  of  Sale  — 

Hogins  v.  Plympton 138 

PART  IX.  — Principal  and  Agent. 

Special  Agent  must  Pursue  Authority  — 

Battij  V.  Carswell 139 

Death  of  Principal  Revokes  Authority  — 

Harper  v.  Little 140 

Contracts  -with  Agents  of  Undisclosed  Principals  — 

Paterson  v.  Gandasequi 141 

Thomson  v.  Davenport 143 

Stone  V.  Wood 145 

Set-Off  Against  Principal  — 

George  v.  Clagett 146 

Agent  Exceeding  Authority  Liable  in  Contract  — 

Collenv.  Wright       .        • 148 

Partnership  Liability  — 

Wangh  v.  Carver 150 

Cox  V.  Hickman 161 

PART  X.  —  Negotiable  Paper. 

The  Requisites  of  a  Promissory  Note  — 

Eelley  v.  Hemmingvoay 163 


CONTENTS.  XI 

PAGE. 

Title  to  Bank  Notes  — 

Miller  v.  Bace 154 

Who  18  A  "  HoLDEK  FOR  Value  "  — 

Swift  V.  Tyson 155 

Notice  of  Dishonor,  when  Necessary — 

Bickerdike  v.  Bollman 157 

Unauthorized  Alterations  Vitiate  the  Instrument  — 

Master  v.  Miller 158 

Negligence  in  Drawing  Check  — 

Young  v.  Grote 160 

Stoppage  in  Transitu  — 

Lickbarrow  v.  Mason 161 

Statute  of  Limitations  — 

Whitcomb  v.  Whiting 163 


PART  XI.  —  Landlord  and  Tenant. 

Paying  Rent  for  Destroyed  Premises  — 

Hallettv.  Wylie 165 

No  Warranty  as  to  Condition  of  Premises  — 

Cleves  V.  Willoughby 166 

Except  it  is  a  Furnished  House  — 

Smith  V.  Marrable 167 

Effect  on  Tenant  of  Mortgage  by  Landlord  — 

Keech  v.  Hall 169 

Moss  V.  Gallimorc 170 

Usages  and  Customs  — 

Wigglesxnorth  v.  Dallison 171 

Leases  for  more  than  Three  Years  — 

Bigge  v.  Bell 172 

Clayton  v  Blakey 173 

Agricultural  Fixtures  — 

Elwes  V.  Maioe 174 

Covenants  that  "  Run  with  the  Land  "  — 

Spencer''s  Case 178 

Waiver  of  Condition  in  Lease  — 

Dumpor^s  Case 180 


Xll  CONTENTS. 

PAGE. 

Goods  PumLECED  from  Distress  for  Rent  — 

Simpson  v.  Hartopp 182 

PART  XII. —Insurance. 

Concealment  of  Material  Facts  — 

Carter  v.  Boehm 186 

Fire  Insurance — Customary  Use  of  Prohibited  Articles  — 

Harper  v.  City  Ins.  Co 187 

Who  MAY  Insure  THE  Life  of  Ajstother  — 

Connecticut,  etc.,  Ins.  Co.  v.  Schaefer      ....  189  , 

PART  XIII.  —  Bailments. 

The  Different  Kinds  of  Bailments  — 

Coggs  V.  Bernard 191 

Liabilities  of  Inn-keepers  — 

Cayle's  Case 199 

Berkshire  Woollen  Co.  v.  Proctor 200 

Responsibility  of  Carrier  of  Passengers  for  Defective 
Vehicle  — 

Ingalls  v.  Bills 202 

Railroad  Time-tables  and  Contracts  — 

Denton  v.  G-reat  Northern  B.  Co 204 

Power  of  Carrier  to  Liivht  Liability — 

Hollister  v.  Nowlen 205 

Liability  for  Injury  to  Free  Passenger  — 

Philadelphia,  etc.,  B.  Co.  v.  Derby 207 

Travelling  on  "Free  Pass  "  with  Conditions  — 

Bailroad  Co.  v.  Lockwood 209 

Who  Carrier  may  Refuse  to  Carry  — 

Thurston  v.  Union  Pacific  B.  Co 210 

What  is  "Baggage "  for  which  Carrier  is  Responsible  — 

New  York,  etc.,  B.  Co.  v.  Fraloff 212 

PART  XTV.  —  Negligence. 

Injury  Resulting  from  Unintentional  Accident  — 

Broicn  v.  Kendall 215 


CONTENTS.  XIU 

PAGE. 

One   must  so    use  his  Property  as  not  to  Injure   his 
Neighbor's  — 

Fletcher  v.  Bylands 216 

Liability  for  Injuries  by  Animals  — 

Ma'j  V.  Burdett 218 

Selling  Poison  -vmn  Harmless  Label  — 

Thomas  v.  Winchester 219 

Eemoving  Support  of  Land  — 

Fanton  v.  Holland 220 

Persons  Coming  ox  Another's  Premises  — 

Indermaur  v.  Dames 221 

Injuries  from  Non-repair  of  Buildings  — 

Todd  V.  Flight 223 

Kks  iPSiE  Loquitur  —  Presumption  of  Negligence  from 
Accident  — 

Byrne  v.  Boadle 224 

Responsibility  of  Master  for  Wilful  Acts  of  Servant  — 

McManusw  Crickett 225 

Employer  not  Liable  for   Negligence  of  Independent 
Contractor  — 

Silliard  V .  Bichardson 227 

Liability  of  Master  for  Injury^  to  Fellow-Servant  — 

Priestley  v.  Foicler 229 

Farwell  v.  Boston,  etc.,  B.  Co 231 

Contributory  Negligence  — 

Butterfield  \ .  Forrester .233 

Davies  v.  Mann 23'4 

Imputed  Negligence  — 

■  Bennett  v.  Neio  Jersey  B.  Co 235 

Contributory  Negligence  of  Children  — 

Lynch  v.  Nurdin 237 

Contributory  Negligence  of  Parent  — 

,Hartfield\.Bopcr 239 

Proximate  and  Kemote  Cause  — 

Scott  V.  Shepherd 240 

Fentv.  Toledo,  etc.,  B.  Co 241 


PART  XV.  —  Miscellaneous  Torts. 

Nuisances  — 

St.  Helen's  Smelting  Co.  v.  Tipping        .        .        .        .243 


XIV  CONTENTS. 

PAGE. 

False  Rkpresentations  — 

Pasley  v.  Freeman 245 

Langridge  v.  Levy 248 

Rights  of  Finders  —  Possession  —  Presumption  — 

Armory  v.  Delamine 251 

"Injury"  Witiiot-t  Damage  — 

Ashbt/  V.   mute 252 

Damage  Without  "  Injury  "  — 

Chasemore  v.  Bichards 253 

Trespass  — 

77ie  Six  Carpenters^  Case 256 

Powers  of  Sheriffs  — 

Semayne^s  Case 258 

Actions  Against  Magistrates  — 

Crepps  V,  Burden 261 

Malicious  Prosecution  — 

Munns  v.  Dupont 262 

Slander  —  Defamatory   Words,    when    Actionable    and 
when  Not  — 

Pollard  V.  Lyon 263 

Lumby  v.  Allday 264 

Damages  in  Actions  of  Tort  — 

Vicars  v.  WilcocTcs 266 

Lumley  v.  Oye 268 

No  Contribution  between  Defendants  in  Tort  — 

Merryweather  v.  Nixan 269 


PART  XVI. —Evidence,  Etc. 

Hearsay  Evidence  — 

Didshury  v.  Thomas 271 

Declarations  by  Persons  Since  Deceased  — 

Price  V.  Earl  of  Torrington 276 

Declarations  by  Deceased  Persons  Against  their   In- 
terest — 

Higham  v.  Bidgway 277 

Presumption  of  Death  from  Absence  — 

Nepean  v.  Doe '      ,        .  278 


CONTENTS.  XV 

PAGE. 
E8TOPPBL3 — 

Duchess  of  Kingston's  Case 279 

Local  and  Transitory  Actions  — 

Mostyn  v.  Fabrigas  ........  283 

0s»  OF  Highways  —  Pleading  — 

Dovaston  v.  Payne 284 


The  Principal  Maxims  of  the  Law 2S7 

Table  ok  Abbreviations 2D3 

IKDBX oCI 


TABLE    OF    CASES. 

PAGE, 

Adams  v.  Lindsell        .         .         .         .          .          .         .11 

Alger  V.  Thacher 

.     98 

Armory  v.  Delamirie 

.  251 

Asliby  V.  "White  . 

.  252 

Aspden's  Estate  . 

.     78 

Atchinson  v.  Baker 

.   121 

Atherford  v.  Beard 

.     97 

Ayre  v.  Craven    . 

.   2G5 

Baily  -v.  De  Crespigny 

.   Ill 

Bainbridge  v.  Firmstone 

.     29 

Baldy  v.  Parker  .... 

.     67 

Bank  of  Colmnbia  v.  Patterson    . 

.     53 

Bartholomew  v.  Jackson 

.       2 

Batty  V.  Carswell 

.   139 

Baxter  v.  Portsmouth  . 

.     51 

Beaumont  v.  Reeve 

.     37 

Behn  v.  Burness 

.     26 

Bennett  v.  New  Jersey  R.  Co. 

.  235 

Berkshire  Woollen  Co.  v.  Proctor 

.  200 

Bickerdike   v,  Bollman 

.   157 

Birkmyr  v.  Darnell 

.     57 

Blackett  V.  Royal  Exchange  Ass.  Co. 

.     85 

Borland  v.  Guffey 

.     20 

Boston  Ice  Co.  v.  Potter 

.     23 

Boston  and  Maine  R,  Co.  v.  Bartlett. 

.       3 

Boulton   V.  Jones 

.     25 

Box  V.  Jubb        .... 

.  217 

A 

(xvii) 

XVUl 


TABLE    OF    CASES. 


Boydell   v.  Dnimmond 
Brogdou  V.  Marriott 
Brown  v.  Edgiiigton 
Brown  v.  Kendall 
BrumnicU  v.  jMacpliorson 
Bulklcy  V.  Landon 
Bunn  y.  Riker 
Burgess  v.  Oray 
Butterlield  v.  Forrester 
Byrne  v.  Boadle 

Carter  v.  Boehm 

Cayle's  Case 

Chandelor  v.  Lopus 

Chasemore  v.  Richards 

Clayton  v.  Blakey 

Clevcs  V.  Willoughby 

Coggs  V.  Bernard 

Collen  V  TVriglit 

Collins  V.  Blantern 

Collins  V.  Godefroy 

Connecticut,  etc.,  Ins.  Co.  v.  Schaefer 

Cook  V.  Bradley 

Cooper  V   Kane   . 

Cornish  v.  Abington 

Cowan  V.  IMilbourn 

Cox  V.  Hickman 

Crosby  v.  Wads  worth 

Crawford  v.  Russell 

Crease  v.  Barrett 

Crepps  V.  Durden 

Cumber  v.  Wane 

Cutter  V.  Powell 

Da  Costa  v.  Jones 

Dalby  v.  India,  etc. ,  Life  Ass.  Co. 


PAGE. 

.  71 

.  97 

.  137 

.  215 

.  181 

.  38 

.  97 

.  228 

.  233 

.  224 

.  186 
.  199 
.  134 
.  2^ 
.  173 
.  166 
.  194 
.  148 
.  89 
.  34 
.  189 
.  36 
.  80 
.  281 
.  92 
.  151 
.  59 
.  103 
.  274 
.  261 
.  35 
.  123 

.  97 
.  192 


TABLE    OF    CASES, 


XIX 


Davies  v.  Mann  . 

Debenham  v.  IMellon    . 

Denton  v.  Great  Northern  R.  Co 

Dewey  v.  Union  School  Dist. 

Dexter  v.  Spear  . 

Didsbury  v.  Thomas 

Ditchburn  v.  Goldsmith 

Doe  V.  Bliss 

Dovaston  v.  Payne 

Duchess  of  Kingston's  Case 

Dumpor's  Case    . 

Duncan  v.  Baker 

Dutton  V.  Gerrich 

Eastwood  V.  Kenyan 

Eliason  v.  Henshaw 

Ellis  V.  Sheffield  Gas  Consumers' 

Elmore  v.  Stone 

Elthani  v.  Kingsman 

Elwes  V.  IMawe    . 

Evans  v.  Jones    . 


Farwell  v.  Boston,  etc 
Fclthouse  V.  Bindley 
Fent  V.  Toledo,  etc.,  ] 
Fetrow  v.  "Wiseman 
Fish  V.  Kempton 
Fletchers  v.  Ry lands 
Frost  V.  Knight  . 

George  v.  Clagett 
Gerst  V.  Jones     . 
Gibbs  V.  Benjamin 
Gilbert  v.  Sykes 
Given  v.  Blann    . 
Godsall  v.  Boldero 


,  R.  Co. 
i.   Co. 


Co. 


PAGE. 

.  234 

.  47 

.  204 

.  116 

.  2G6 

.  271 

.  97 

.  181 

.  284 

.  279 

.  180 

.  125 

.  169 

.  63 

6 

.  229 

.  68 

.  98 

.  174 

.  97 

.  231 

8 

.  241 

.  41 

.  148 

.  216 

.  118 

.  146 

.  137 

.  133 

.  97 

.  184 

.  192 


XX 


TABLE    OF    CASES. 


Good  V.  Elliott  . 
Goss  V.  Nugent  . 
Gulick  V.  Ward  . 

Hadley  v.  Baxendale 
Hallett  V.  AVylie 
Harper  v.  City  Ins.  Co. 
Harper  v.  Little  . 
Hartfield  v.  Roper 
Hartley  v.  Rice   . 
Higham  v.  Ridgway 
Hill  V.  Kidd 
Hilliard  v.  Richardson 
Hochster  v.  De  La  Tour 
Hockenbury  v.  Meyers 
Hogins  V.  Plj'mpton     . 
Hole  V.  Sitting  Bourne  R. 
Hollister  v.  Nowlen 
Holman  v.  Johnson 
Holt  V.  Clarencieux 
Hopkirk  v.  Page 
Iloskins  V.  Paul  . 
Household  Fire  Ins.  Co.  1 
Hunt  V.  Peake     . 

Indermaur  v.  Dames    . 
Ingalls  V.  Bills     . 

Jolly  V.  Rees 
Jones  V.  Bright  . 
Jones  i\  Just 
Jordan  v.  Norton 

Keech  v.  Hall      . 
Kellcy  V.  lU'inmingway 
Kemble  v.  Farren 


Co. 


Grant 


PAGE. 

.  96 
.  74 
.     87 

.  125 
.  165 
.  187 
.  140 
.  239 
.  97 
.  277 
.  97 
.  227 
.  117 
.  32 
.  138 
.  229 
.  205 
.  106 
.  44 
.  158 
.  183 
.  14 
.  43 

.  221 
.  202 

.  48 
.  137 
.  136 
.   19 

.  169 
.  153 
.  126 


TABLE    OF    CASES. 


XXI 


Kirkstall  Brewery  Co.  v.  Furncss  R.  Co. 
Krom    V.  Schoonmaker 
Kyle  V.  Kavanaugh 

Lampleigh  v.  Brathwait 
Langridge  v.  Levy 
Lee  V.  Griffin 
Lickbarrow  v.  Mason 
Loffus  V.  Maw     . 
Loring  v.  City  of  Boston 
Lowe  V.  Peers 
Lumby  v.  Allday 
Luinlc}^  V.  G3^e    . 
Lumley  v.  "Wagner 
Lynch   v.  Nurdin 


Maclay  v.  Harvey 
Malpas    V.  London  & 
Manby  v.  Scott   . 
Marriott  v.  Hampton 
Marzetti  v.  Williams 
Mason  v.  Chappell 
Master  v.  Miller 
May  V.  Burdett   . 
Merry  weather  v.  Nixan 
Miller  v.  Race 
Mitchel  V.  Reynolds 
Mitchell  V.  Kingman 
Mitchell  V.  Reed 
Montagu  v.  Benedict 
Moss  V.  Gallimore 
Mostyn  v.  Fabrigas 
Munns  v.  Dupont 
Murray  v.  Currie 
McManus  v.  Crickett 


Southwestern  R.  Co 


PAGE. 

.  275 
.  62 
.  25 

.  39 
.  248 
.  66 
.  161 
.  282 
.  9 
.  102 
.  264 
.  268 
.  268 
.  237 

.  7 
.  79 
.  45 
.  130 
.  255 
.  137 
.  158 
.  218 
.  269 
o  154 
.  101 
.  50 
.  282 
.  46 
.  170 
.  283 
.  262 
.  228 
.  225 


XXII 


TABLE    OF    CASES. 


Nelson  v.  Liverpool  Brewery  Co. 

Nepean  v.  Doe    . 

New  York  Central  R.  Co.  v.  Fraloff 

Nichols  c.  Mavsland 

Noe  V.  Gibson     . 

Palfrey  v.  Portland,  etc.,  R.  Co. 

Panton  v.  IloUaud 

Pasloy  V.  Freeman 

Patcrson  v.  Gandasequi 

Pattee  v.  Greeley 

Payne  v.  Cave     . 

Pearce  v.  Brooks 

Peck  V.  United  States  . 

Peter  v.  Compton 

Peters  r.  Fleming 

Philadelpliia,  etc.,  R.  Co.  v.  Derby 

Pollard  V.  Lyon  . 

Price  V.  Earl  ot  Torrington 

Priestley  v.  Fowler 

Pyra  V.  Campbell 

Railroad  Co.  v.  Lockwood 
Raun  V.  ITnglies  . 
Reg  V.  Bliss 
Reynolds  v.  Nugent 
Rigge  V.  Bell 
Bobbins  v,  Chicago 
Robinson  v.  DaAdson 
Roe  V.  Tranmar  . 
Rust  V.  Gott 

St.  Helen's  Smelting  Co.  v.  Tipping 
Sargent  v.  Adams 
Scott  V.  Avery     . 
Scott  V.  Shepherd 


PAGE. 

.  224 

.  278 
.  212 
.  217 
.   184 

.  32 
.  220 
.  245 
.  141 
.  93 
.  5 
.  95 
.  IIQ 
.  60 
.  42 
.  207 
.  263 
.  276 
.  229 
.     7G 

.  209 
.  2<S 
.  274 
.  34 
.  172 
.  229 
.  114 
.  119 
.     97 

.  243 
.  77 
.  91 
.  240 


TABLE   OF   CASES. 


XXlll 


Seaton  v.  Benedict 
SemaA'ne's  Case  . 
Sherman  v.  Kitsmiller 
Shindler  v.  Houston     . 
Short  V.  Stotts     . 
Simpson  v.  Ilartopp     . 
Six  Carpenters'  Case,  The 
Smith  V.  ^Marrable 
Smith  V.  "Wilson 
Souticr  V.  Kellerman    . 
Spencer's  Case     . 
Spring  Co.  v.  Knowlton 
Stilk  V.  Myrick   . 
Stone  V.  Wood    . 
Swift  V.  Tj^son    . 

Tarling  v.  Baxter 

Tarry  v.  Ashton  . 

Tayloe  v.  Merchants'  Fire  Ins.  Co 

Taylor  v.  Caldwell 

Thomas   v.  Winchester 

Thomson  v.  Davenport 

Thorogood  v.  Bryan    . 

Thurston  v.  Spratt 

Thurston  v.  Union  Pacific  R.  Co 

Tisdale  v.  Harris 

Todd  V.  Flight    . 

Tool  Co.  V.  Norris 

Twyne's  Case 

Vicars  v.  Wilcocks 
Vischer  v.  Yates 

Wain   I'.  Warlters 
Wauirh  i'.  Carver 


PAGE, 

,  47 

.  258 

.  16 

.  70 

.  59 

.  182 

.  256 

.  168 

.  83 

.  81 

.  178 

.  108 

.  35 

.  145 

.  155 

.  132 
.  224 
.  12 
.  113 
.  219 
.  143 
.  236 
.  137 
.  210 
.  65 
.  223 
.  88 
.  128 

.  266 
.  97 

.  62 
.  150 


XXIV 


TABLE    OF    CASES. 


Whatman  v.  Pearson   . 
Wheadon  v.  Olds 
Whitcomb  v.  Whiting  . 
White  V.  Bluett  . 
White  V.  Corlios  . 
WigglosTVorth  i*.  Dallison 
WiUard  v.  Stone 
WiUiams  v.  Carwardine 
Williamson  v.  Simmons 
Wrightman  v.  Coates  . 

Young  V.  Grote  . 

Zaleski  v.  Clark  . 


PAGE. 

.  227 
.  132 
.  163 
.  30 
.  1 
.  171 
.  122 
.  22 
.  137 
.  120 

.  160 

.  18 


LEADING  CASES  SIMPLIFIED. 


I.  —  FOKMATION^   OF    COXTKACT. 


TWO  REQUISITES   TO   CONTRACT,   VIZ.:    PRO- 
POSAL AND  ASSENT 


WHITE  v.  CORL.IES. 

[46  N.  Y.  4G7.] 

White  was  a  builder,  and  Corlies  &  Co.  were  mer- 
chants, all  doing  business  in  New  York  City.  The 
latter  had  talked  to  White  about  refitting  their  offices, 
which  negotiations  culminated  in  their  sending  a  note 
to  him  in  these  Avords  :  — 

**  Upon  an  agreement  to  finish  the  fitting  up  of  of- 
fices 57  Broadway  in  two  weeks  from  date,  you  can 
begin  at  once." 

Now,  if  White  had  known  as  much  about  the  law  as 
he  did  six  years  later,  he  would  scarcely  have  bought 
his  lumber  and  commenced  work  without  telling  Corlies 
&  Co.  that  he  would  take  the  job.  But  tiiis  is  just 
what  he  did  ;  and  when  Corlies  &  Co.  the  next  day 


2  LEADING    CASES    SIMPLIFIED. 

countermanded  the  order,  there  seemed  nothing  for 
him  to  do  but  to  bring  an  action  against  them  for  breach 
of  contract.  But  here  he  made  a  mistake  again,  for 
the'Court  of  Appeals  of  New  York  decided  that  there 
was  no  contract  to  sustain  an  action.  They  said  the 
rule  of  law  was,  that  when  an  ofler  is  made  hy  one  party 
to  another  when  they  are  not  together,  the  acceptance 
of  it  by  the  other  must  be  made  manifest  to  him. 
Until  that  is  done  there  is  no  contract.  True,  White 
had  made  up  his  mind  to  accept,  for  he  bought  the 
lumber  and  commenced  work.  But  a  mental  deter- 
mination, not  indicated  l)y  speech  or  put  in  course  of 
indication  by  act  to  the  other  party,  is  not  an  accept- 
ance which  will  bind  the  other. 


BARTHOLOMEW  v.  JACKSON. 

[20  Johns.  28;  11  Am.  Dec.  237.] 

Bartholomew  and  Jackson  were  farmers  and  neigh- 
bors. A  stack  of  Bartholomew's  wheat  was  in  Jackson's 
field,  which  Bartholomew  had  promised  to  remove  in 
time  for  Jackson  to  prepare  the  ground  for  sowing. 
The  time  having  arrived,  Jackson  sent  a  message  to 
Bartholomew,  which  was  delivered  to  his  family  in  his 
absence,  requesting  the  immediate  removal  of  the 
wheat  as  he  wanted  to  burn  the  stubble.  Bartholo- 
mew's sons  sent  back  word  that  they  would  remove 
it  the  next  morning.  But  the  next  morning  they  did 
not  appear,  and  so  Jackson,  having  commenced  to  burn 


"FORMATION   OF   CONTRACT.  3 

the  stiibblo,  and  believing  the  stack  to  be  in  danger, 
removed  it  himself.  Jackson  thought  some  one  ought 
to  pay  him  for  his  trouble,  and  although  the  Supreme 
Court  of  New  York  considered  it  very  unworthy  of  Bar- 
tholomew to  resist  such  a  claim,  they  were  obliged  to 
decide  that  he  was  not  legally  bound.  When  Jackson 
saw  Bartholomew's  stack  in  danger  of  burning  and 
went  to  work  to  remove  it,  he  impliedly  made  an  offer 
to  Bartholomew  to  remove  it  for  him,  but  it  was  an 
o.Tcr  which  was  uncommunicated  to,  and  unaccepted 
by  Bartholomew,  and  therefore  there  was  no  contract 
on  which  Bartholomew  could  be  held. 


PROPOSAL    CANl^tOT   BE    RETRACTED    AFTER 
ACCEPTANCE. 


BOSTOIS^  AND  MAUmE  R.  CO.  v.  BAKTLETT. 

[3  Cush.  224:  Langcl.  Cas.  on  Con.  103.] 

"  We  will  sell  you  our  land  for  $20,000  if  you  will 
take  it  withiu  thirty  days,"  wrote  the  defendants  in 
this  important  case,  to  the  officers  of  the  Boston  and 
Maine  Railroad  Company.  The  officers  of  the  cor- 
poration thought  over  the  matter  for  some  time,  and 
fnially  several  days  before  the  thirty  days  had  expired, 
notified  the  defendants  that  they  would  accept  the 
offer,  tendered  them  the  $20,000,  and  asked  them  to 


4  LEADING   CASES   SIJITLIFIED, 

put  their  si<T^naturcs  to  a  deed  of  the  hmd  in  proper 
form.  Then  the  defendants  tried  to  back  out  of  the 
ngreement,  but  the  Supreme  Judicial  Court  of  Mas- 
gaehusetta  said  it  was  too  hite  to  do  that.  "  Though 
the  writing  signed  by  the  defendants  was  but  an  olfer, 
and  an  oiler  which  might  be  revoked,"  said  the  court, 
"  yet,  while  it  remained  in  force  and  unrevoked,  it 
was  a  continuing  offer  during  the  time  limited  for  ac- 
ceptance, and  during  the  whole  of  that  time  it  was  an 
offer,  every  instant ;  but  as  soon  as  it  was  accepted  it 
ceased  to  be  an  offer  merely,  and  then  ripened  into  a 
contract.  The  counsel  for  the  defendants  is  most 
surely  in  the  right  in  saying  that  the  writing,  when 
made,  was  without  consideration,  and  did  not,  there- 
fore, form  a  contract.  It  was  then  but  an  offer  to  con- 
ti-act ;  and  the  parties  making  the  offer,  most  undoulit- 
edly,  might  have  withdrawn  it  at  any  time  before 
acceptance.  But  when  the  offer  was  accepted  the 
minds  of  the  parties  met,  and  the  contract  was  com- 
plete. There  was  then  the  meeting  of  the  minds  of 
the  parties  which  constitutes,  and  is  the  definition 
of,  a  contract.  The  acceptance  by  the  plaintiffs 
constituted  a  sufficient  legal  consideration  for  the 
engagement  on  the  part  of  the  defendants.  There  was 
then  nothing  wanting,  in  order  to  perfect  a  valid  con- 
tract on  the  part  of  the  defendants.  It  was  precisely 
as  if  the  parties  had  met  at  the  time  of  the  acceptance, 
and  the  offer  had  then  been  made  and  accepted,  and 
the  bargain  completed  at  once." 


FORMATION   OF   CONTRACT. 


BIDDING  AT  AUCTIONS. 


PAYNE  V.  CAVE. 

[3  Term  Rep.  148 :  Langd.  Cas.  on  Con.  1.] 

There  was  an  auction  sale  at  which  Cave  was  one  of 
the  l)idders.  A  certain  article  being  put  up,  there  was 
some  spirited  bidding,  Cave's  bid  of  £40  being  the 
last.  The  auctioneer  sang  out  ''  going,  going,  going," 
but  was  so  long  coming  to  "gone,"  that  Cave  said, 
"  Why  do  you  dwell?  you  will  not  get  more."  Still 
the  auctioneer  refused  to  knock  the  article  down,  and 
began,  instead,  to  tell  the  spectators  what  a  bargain 
they  were  letting  slip.  Cave  again  interrupted,  and 
asked  the  auctioneer  if  he  would  warrant  what  he  said. 
The  auctioneer  refused.  "Then,"  said  Ca^ve,  "I 
won't  take  it."  No  one  else  wanting  it,  the  auc- 
tioneer was  forced  to  sell  it  next  day  at  a  loss  of  ten 
pounds  on  Cave's  bid,  against  whom  he  afterwards 
brought  an  action  for  the  difference.  But  Lord  Ken- 
YON,  who  tried  the  case,  Avas  of  opinion  that  Cave  was 
at  liberty  to  withdraw  his  bid  at  any  time  before  the 
hammer  was  brought  down,  and  non-suited  the  plain- 
tiff. So  thought  the  whole  court  on  appeal.  The 
assent  of  both  parties,  they  said,  is  necessary  to 
make  a  contract  binding.  This  is  signified  on  the 
part  of  tlie  seller  by  bringing  down  the  hammer  or 
callino;  out  "  o-one  "  or  "  sold,"  which  was  not  dono 
here  until  the  defendant  had  retracted  his  offer.  An 
auction  is  not  inaptly  called  locus  poenitentioe  (a  place 


LEADING    CASES    SIMPLIFIED. 


for  repentance).     Every  bid  is  nothing  more  than  an 
offer,  which  is  not  binding  till  accepted. 


PROPOSER  MAY  PRESCRIBE  TIME,  PLACE  AND 
FORM  OF  ACCEPTANCE. 


ELIASOX  V.  HENSHAW. 

[4  Wheat.  225. J 

E.  &  Co.  offered  to  ])uy  flour  of  H.,  the  answer  to  bo 
sent  b}^  the  return  of  the  wagon  which  carried  the  offer. 
H.  sent  a  letter  of  acceptance,  by  mail,  to  another  place, 
which  was  not  the  destination  of  the  wairon,  havinsT 
reason  to  believe  that  his  answer  would  in  this  way 
reach  E.  &,  Co.  more  speedily.  The  Supreme  Court  of 
the  United  States  held  that  E.  &  Co.  wci-e  not  bound 
by  the  acceptance  so  sent.  An  acceptance,  said  Mr. 
Justice  Wastiington,  communicated  at  a  place  dif- 
ferent from  that  pointed  out  by  E.  &  Co.,  and  forming 
apart  of  their  proposal,  imposed  no  obligation  binding 
upon  them,  unless  they  had  acquiesced  in  it,  Avhicli  they 
declined  doinu;.  It  is  no  ar<2;ument  that  an  answer  was 
received  at  another  place.  E.  &,  Co.  had  a  rigiit  to 
dictate  the  terms  upon  which  they  would  purchase  the 
flour  ;  and,  unless  they  were  complied  with,  tiicy  were 
not  bound  by  them.  All  their  arrangements  may  have 
been  made  with  a  view  to  the  circumstance  of  place. 


FORMATIOX    OF    CONTRACT. 


and  they  were  the  only  judges  of  its  importance. 
There  was,  therefore,  no  contract  concluded  between 
these  parties. 


]MACLAY  V.  HARVEY. 

[90  111.  525.] 


A  merchant  wanted  a  milliner.  In  a  neighboring 
town  lived  Miss  Maclay,  who  was  open  to  an  engage- 
ment of  this  kind.  The  merchant  hearing  of  her,  dis- 
patched a  letter  offering  the  situation,  and  asking  for 
her  answer  by  return  mail.  Directly  she  had  read  the 
letter,  she  sat  down  and  wrote  her  acceptance  on  a 
postal  card.  But  instead  of  putting  this  in  the  post- 
office  herself,  she  gave  it  to  a  small  boy  to  post  for  her, 
which  small  boy  carried  it  in  his  pocket,  with  his  peg- 
tops  and  marbles,  for  four  days  before  he  posted  it. 
Meanwhile  the  merchant  had  made  other  arrangements, 
so  that  when  INIiss  Maclay  reached  his  store  according 
to  the  terms  of  the  card  which  had  lingered  in  the 
pocket  of  the  small  boy,  she  Avas  notified  that  her 
services  were  not  required.  The  Supreme  Court  of 
Illinois  held  that  she  could  not  obtain  any  damages 
for  the  breach  of  a  contract  without  proving  a  contract 
to  commence  with.  She  had  proved  a  proposal  which 
required  that  she  should  assent  by  return  mail,  and  as 
she  had  not  assented  by  return  mail  (the  small  boy 
being  her  agent  in  the  matter),  but  by  a  mail  four  days 


8  LEADING   CASES    SIMPLIFIED. 

later,  she  had  failed  to  show  acceptance  of  the  mer- 
chant's offer.  And  judgment  was  given  against  the 
milliner. 


BUT  NOT  OF  REFUSAL. 


FEL.THOUSE  v.  BINDLEY. 

[11  C.  B.  (X.  s.)  809.] 

An  uncle  and  nephew  having  verbally  treated  for 
the  purchase  of  a  horse  by  the  former  of  the  latter, 
the  nephew  wrote  to  the  uncle  stating  that  he  under- 
stood that  he  (the  uncle)  had  mistaken  the  price  he 
held  the  horse  at  —  thirty  guineas  was  the  price,  not 
thirty  pounds.  To  which  the  uncle  replied  by  letter: 
"Your  price,  I  admit,  was  thirty  guineas.  I  offered 
£30 ;  never  offered  more,  and  you  said  the  horse 
was  mine.  However,  as  there  may  be  a  mistake  about 
him,  I  will  split  the  difference.  If  I  hear  no  more 
about  him,  I  consider  the  horse  mine  at  £30  15s." 
He  heard  no  more  about  him  ;  but  the  horse,  neverthe- 
less, was  not  his,  for  the  court  held  that  there  was  no 
contract  for  his  sale.  The  uncle  had  no  right  to  im- 
pose upon  the  nephew  a  sale  of  his  horse  for  £30  15s., 
unless  he  chose  to  comply  with  the  condition  of  writing 
to  him.     The  nephew  might  have  bound  his  uncle  to 


FORMATION   OF    CONTRACT. 


the  bargain  by  writing  to  him  ;  but  as  he  did  not  do 
this,  there  was  nothing  but  an  open  offer,  which  never 
ripened  into  a  contract. 


OFFER  MUST  BE  ACCEPTED  WITHIN  REASON- 
ABLE TIME. 


L.ORIXG  V.  CITY  OF  BOSTON". 

[7  Mete.  409;  Langd.  Cas,  on  Con.  99.] 

The  citizens  of  Boston  and  vicinity,  on  the  morning 
of  May  27,  1837,  read  this  advertisement  in  their 
newspapers. 

*'  $1,000  reward.  The  frequent  and  successful  repe- 
tition of  incendiary  attempts,  renders  it  necessary  that 
the  most  vigorous  efforts  should  be  made  to  prevent 
their  recurrence.  In  addition  to  the  other  precautions 
the  reward  heretofore  offered  is  doubled.  One  thou- 
sand dollars  will  be  paid  by  the  city  for  the  conviction 
of  any  person   engaged  in  these  nefarious    practices. 

"  Samuel  A.  Eliot,  Mavor. 

«' May  27,  1837." 

There  had  been  a  similar  advertisement  offering  $500 
reward  in  the  newspapers  the  day  before,  and  both 
continued  to  appear  for  about  a  week,  when  they 
ceased.     No    notice    of  any  time    during  which   they 


10  LEADIXO    CASES    SniPLIFIED. 

would  be  in  force,  or  of  any  revocation  of  the  offer,  was 
ever  made  hy  the  city  authorities.  In  January,  1841, 
the  Arnuny  House  and  several  other  buildinirs  in  Bos- 
ton were  l)ui-nt  down.  Lorini^  and  another  person, 
suspecting-  who  the  incendiary  was,  concluded  to  hunt 
him  up  and  got  the  reward  of  four  years  ago.  They 
pursued  the  incendiary  to  New  York,  had  him  ar- 
rested, brought  back,  convicted  and  sent  to  the  State 
Prison.  But  when  they  came  to  claim  the  reward 
they  did  not  succeed  so  well,  for  they  had  to  sue  the 
city  for  it,  oidy  to  be  told  by  the  Supreme  Judicial 
Court  of  ?^Ia.ssachusetts  that  they  could  not  recover 
the  .$1,000.  "  The  offer  of  a  reward  for  the  detection 
of  a  criminal,"  said  Chief  Justice  Shaw,  of  pious 
memory,  "  the  recovery  of  property  and  the  like  is  an 
offer  or  proposal  on  the  part  of  the  person  making  it 
to  all  persons,  which  any  one  capable  of  performing 
the  service,  may  accept  at  any  time  before  it  is  revoked 
and  perform  the  service  ;  and  such  offer  on  one  side, 
and  acceptance  and  performance  of  the  service  on  the 
other,  is  a  valid  contract  made  on  good  consideration, 
which  the  law  will  enforce."  But  an  offer  cannot  be 
supposed  to  last  forever,  and  as  there  was  no  limit  in 
terms  in  the  advertisement,  then,  by  a  general  rule  of 
law,  it  was  limited  to  a  reasonable  time,  that  is  to  say, 
the  service  must  be  done  or  the  offer  accepted  within  a 
reasonable  time  after  the  offer  was  made.  And  three 
years  and  eight  months  Avas  not,  in  the  opinion  of  the 
Chief  Justice  and  the  other  members  of  the  court,  a 
reasonable  time  within  which  the  offer  in  question 
could  be  considered  as  a  continuing  offer  on  the  part  of 
the  city.  And  so  Loring  and  his  partner  went  un- 
rewarded for  their  trouble. 


FORMATION  OF  CONTRACT.  11 

CONTRACTS  BY  POST. 


ADA3IS  V.  LDfDSELL. 

[1  Barn.  &  Aid.  081.] 

Mr.  Lindsell,  wool-dealer  at  St.  Ives,  one  day  wrote 
a  letter  to  Messrs.  Adams  &  Co.,  woollen  manufac- 
turers of  Bronisgrove,  offering  to  sell  them  a  quantity 
of  wool  at  a  certain  price,  but  adding  that  he  must 
have  their  reply  if  they  wished  to  close,  "  in  course  of 
post."  Now,  whereas  Bromsgrove  is  in  Worcester- 
shire, Mr.  Lindsell  was  ignorant  enough  to  address  his 
envelope  to  "  Bromsgrove,  Leicestershire,"  and  in  con- 
sequence of  that  mistake  his  letter  reached  its  destina- 
tion several  days  late.  Directly  Adams  &  Co.  did  re- 
ceive it,  thinking  the  offer  a  decidedly  good  one,  they 
wrote  off  and  accepted  it.  But  in  the  meantime  Mr. 
Lindsell  had  inferred  from  their  silence  that  they  did 
not  want  his  wool,  and  the  day  before  their  letter 
reached  him,  but  after  it  had  been  posted,  had  sold  it  to 
some  one  else. 

This  action  was  brought  for  non-delivery  of  the 
wool,  and  the  defendant  contended  that  he  had  a  right 
to  retract  his  offer  till  notified  of  its  acceptance,  and 
iirjred  that  he  could  not  be  bound  on  his  side  till  the 
plaintiffs  were  on  theirs.  But  the  court  said  :  "  If  that 
were  so,  no  contract  could  ever  be  completed  by  the 
post.  For  if  the  defendants  were  not  bound  by  their 
offer,  when  accepted  by  the  plaintiffs,  till  the  answer 
was  received,  then  the  plaintiffs  ought  not  to  be  bound 


12  LEADING   CASES    SIMPLIFIED. 

till  after  they  had  received  the  notification  that  the 
defendants  had  received  their  answer  and  assented  to 
it;  and  so  it  might  go  on  ad  infinitum.  The  defend- 
ants must  be  considered  in  law  as  making,  during 
every  instant  of  the  time  their  letter  was  travelling, 
the  same  identical  offer  to  the  plaintiffs,  and  then  the 
contract  is  completed  by  the  acceptance  of  it  by  the 
latter.  Then,  as  to  the  delay  in  notifying  the  accept- 
ance, that  arises  entirely  from  the  mistake  of  the 
defendants,  and  it  therefore  must  be  taken  as  against 
them,  that  the  plaintiffs'  answer  was  received  ♦  in  course 
of  post.'  " 


TAYLOE  V.  ]\IERCHA^TS  FIRE  IXS.  CO. 

[9  How.  390;  Langcl.  Cas.  on  Con.  106.] 

Mr.  Tayloe  (not  Tajdor)  Avantcd  to  insure  his  resi- 
dence in  Richmond  County,  Virginia.  He  applied  to 
the  local  agent  at  Fredericksburg,  and  after  considera- 
ble correspondence  between  the  latter  and  the  head 
office  in  Baltimore,  the  agent,  on  December  2d,  wrote 
to  Tayloe  who  was  then  in  Alabama,  informing  him 
that  his  application  had  been  approved  by  the  com- 
pany, and  giving  him  the  rates  at  which  they  would 
insure  him.  The  agent  having  misdirected  the  letter,  it 
was  the  20th  of  December  before  it  reached  hitn,  but 
the  next  day  (the  21st)  Tayloe  sat  down  and  wrote  the 
agent  a  note,  telling  him  to  deposit  the  policy  in  the 
bank  and  enclosing   him  a  check   for  the   premium. 


FORMATION  OF  CONTRACT.  13 

This  was  received  on  the  31st,  but  on  the  night  of  the 
22d  the  house  was  burned  down.  The  insurance  com- 
pany refused  to  recognize  Mr.  Tayloe's  claim,  and  the 
Supreme  Court  of  the  United  States  were  called  on  to 
decide  whether  Tayloe's  acceptance  was  complete  on 
the  21st,  when  he  posted  his  letter,  or  on  the  31st 
when  the  agent  received  it.  This,  one  can  understand 
at  a  ghince,  was  a  very  important  matter  to  Mr. 
Tayloe,  for  if  the  court  said  the  21st  was  the  time, 
then  he  would  get  his  insurance  money,  otherwise  not. 
The  company  contended  that  they  had  a  right  to  with- 
draw their  offer  at  any  time  before  notice  of  the 
acceptance  reached  them.  But  the  court  decided  in 
favor  of  Tayloe.  An  offer,  they  said ,  made  through  the 
mail,  impliedly  authorizes  an  answer  to  be  sent  in  the 
same  way,  and  the  offer  cannot  be  withdrawn  unless 
the  withdrawal  reaches  the  party  to  whom  it  is  ad- 
dressed before  his  letter  of  reply  announcing  his 
acceptance  has  been  mailed.  When  Tayloe  had  mailed 
his  letter  of  acceptance  he  had  done  everything  which 
the  offer  required  him  to  do.  Upon  any  other  view 
the  proposal  would  amount  to  nothing  and  no  contract 
would  ever  be  completed,  as  the  acceptance  would  be 
but  the  adoption  of  the  terms  tendered,  to  be  in  turn 
proposed  by  the  applicant  to  the  company  for  their 
approval  or  rejection. 


14  LEADING    CASES    SIMPLIFIED. 

HOUSEHOLD  FIRE  INS.  CO.  v.  GRANT. 

[4  Ex.  Div.  21G.] 

The  insurance  agent,  in  Mr.  Tayloe's  case,  received 
his  letter  after  the  house  was  ])urne(l  down  ;  and  in 
Ada77is  V.  Lindsell^  the  important  letter  which  Mr. 
LindsoU  wrote  about  his  wool,  and  which  he  mis- 
directed, did  at  last  reach  the  wool-manufacturers, 
though,  so  far  as  Mr.  Lindsell's  interests  were  con- 
cerned, very  much  behind  time.  In  both  of  these 
cases,  as  we  have  just  seen,  the  courts  decided  that 
the  contract  was  concluded  when  the  letter  went  into 
the  post-office,  without  regard  to  the  time  when  it 
reached  the  person  to  whom  it  was  addressed.  But 
Mr.  Grant  waited  for  three  years  for  his  letter,  which 
never  came,  —  and  it  has  probably  not  come  yet ;  still 
this  did  not  make  his  case  any  different  from  Mr. 
Tayloe's  or  Mr.  Lindsell's.  Here  is  the  way  the 
trouble  came  about :  ]\Ir.  Grant,  who  had  some  spare 
cash  to  invest  in  stock,  wrote  to  the  Household  Fire 
Insurance  Company  (limited)  asking  them  to  allot 
him  one  hundred  shares  in  the  company.  The  secre- 
tary entered  his  name  on  the  books,  and  replied  by 
mail  that  the  shares  had  been  alloted  as  he  desired. 
Mr.  Grant  never  received  this  letter,  and  heard  nothing 
further  from  the  company  until  three  years  aftei'wards, 
when  there  came  a  notice  that  a  matter  of  $500  or 
so  was  due  from  him  for  assessments  on  his  shares. 
Then  Mr.  Grant  said  that  he  didn't  own  any  shares  in 
the  company  ;  that  his  application  had  never  received 
an  answer,  and  that  there  was  therefore  no  contract. 
But  the  English  Court  of  Appeal  thought  otherwise. 


FORMATION  OF  CONTRACT.  15 

»'The  contract,"  said  Thesiger,  L.  J.,  one  of  the 
learned  judges  who  delivered  the  judgment,  "is 
actuall}^  made  when  the  letter  is  posted.  The  ac- 
ceptor, in  posting  the  letter,  has,  to  use  the  lan- 
guage of  Lord  Blackburn,  '  put  it  out  of  his  con- 
trol, and  done  an  extraneous  act,  which  clenches  the 
matter,  and  shows  beyond  all  doubt  that  each  side 
is  bound.'  How,  then,  can  a  casualty  in  the  post, 
whether  resulting  in  delay  —  which  in  commercial 
transactions  is  often  as  bad  as  no  delivery — or  in 
non-delivery,  unbind  the  parties  or  unmake  the  con- 
tract? To  me  it  appears  that,  in  practice,  a  con- 
tract complete  upon  the  acceptance  of  an  offer  being 
posted,  but  liable  to  be  put  an  end  to  by  an  accident 
in  the  post,  would  be  more  mischievous  than  a  con- 
tract only  binding  upon  the  parties  to  it  upon  the 
acceptance  actually  reaching  the  offerer ;  and  I  can 
see  no  principle  of  law  from  which  such  an  anomalous 
contract  can  be  deduced.  There  is  no  doubt  that  the 
implication  of  a  complete,  final  and  absolute  binding 
contract  being  formed  as  soon  as  the  acceptance  of 
an  ofi'er  is  posted,  may,  in  some  cases,  lead  to  incon- 
venience and  hardship.  But  such  there  must  be  at 
times  in  every  view  of  the  law.  It  is  impossible  in 
transactions  which  pass  between  parties  at  a  distance, 
and  have  to  be  carried  on  through  the  medium  of  corre- 
spondence, to  adjust  conflicting  rights  between  inno- 
cent parties,  so  as  to  make  the  consequences  of 
mistake  on  the  part  of  a  mutual  agent  fall  equally 
upon  the  shoulders  of  both.  At  the  same  time  1  am 
not  prepared  to  admit  that  the  implication  in  question 
will  lead  to  any  great  or  general  inconvenience  or 
hardship.     An  offerer,  if  he  chooses,  may  always  make 


16  LEADING   CASES   SIMPLIFIED. 

the  formation  of  the  contract  which  he  proposes 
dependent  upon  the  actual  communication  to  himself 
of  the  acceptance.  If  he  trusts  to  the  post,  he  trusts 
to  a  means  of  communication  which,  as  a  rule,  does 
not  fail,  and  if  no  answer  to  his  offer  is  received  by 
him,  and  the  matter  is  of  importance  to  liim,  he  can 
make  inquiries  of  the  person  to  whom  his  oflfer  was 
addressed.  On  the  other  hand,  if  the  contract  is  not 
finally  concluded,  except  in  the  event  of  the  accept- 
ance actually  reaching  the  oiferer,  the  door  would  bo 
opened  to  the  perpetration  of  nuich  fraud  ;  and,  i)ut- 
ting  aside  this  consideration,  considerable  delay  in 
commercial  transactions  —  in  which  dispatch  is  as  rule 
of  the  greatest  consequence  —  would  be  occasioned, 
for  the  acceptor  would  never  be  entirely  safe  in  acting 
upon  his  acceptance  until  he  had  received  notice  that 
his  letter  of  acceptance  had  reached  its  destination." 
And  Mr.  Grant  was  ordered  to  pay  his  calls. 


UNCERTAIN   AGREEMENT    DOES    NOT    MAKE 
CONTRACT. 


SHERMAJS"  V.  I£ITS]\irLT^ER. 

[17  Serg.  &  R.  45.] 

In    Pennsylvania,    about    fifty    3'ears    ago,  old    Mr. 
Sherman  told   Elizabeth,  his  niece,  that  if  she  would 


FOllMATlOX   OF    CONTRACT.  17 

live  with  him  and  keep  house  for  him  until  somebody 
married  her,  he  would  give  her  a  hundred  acres  of 
land.  She  thought  the  offer  a  good  one,  and  kept 
house  for  him  for  several  years,  and  until  she  v/as  mar- 
ried to  a  namesake  of  his  ;  but,  very  unlike  a  woman, 
she  never  once,  during  all  this  time,  asked  the  old  gen- 
tleman what  hundred  acres  she  was  to  have.  By-and- 
by  he  died,  and  as  he  had  never  carried  out  his  prom- 
ise, and  she  was  not  even  mentioned  in  his  will,  she 
brought  a  suit  against  his  administrator  for  the  breach 
of  his  promise.  TJie  administrator  did  not  deny  the 
facts,  but  said  that  "  one  hundred  acres  of  land  "  was 
really  to  indefinite  a  quantity  to  form  a  legal  contract 
which  the  courts  could  enforce.  The  court  thought  so, 
too,  and  Elizabeth  went  away  empty-handed,  after 
listening  to  the  following  remarks  from  the  judge,  who 
delivered  the  opinion  of  the  court:  "  If  a  certain  ex- 
plicit, serious  promise  was  made  with  her,  and  the 
promise  was  certain  of  some  certain  thing,  it  would  be 
binding.  *  *  *  g^t  there  would,  in  the  present 
case,  be  nothing  that  even  a  court  of  chancery  could 
decree  performance  of,  for  the  promisor  himself  would 
not  know  what  to  convey,  nor  the  promisee  what  to 
demand.  If  it  had  been  a  promise  to  give  her  one 
hundred  pieces  of  silver,  this  would  be  too  vague  to 
support  an  action,  —  for  what  pieces?  fifty-cent  pieces 
or  dollars?  of  what  denomination?  One  liundred  cows 
or  sheep  would  be  sufficiently  certain,  l)ecause  the  in- 
tention would  be  that  they  should  be  at  least  of  a 
middling  quality ;  but  one  hundred  acres  of  land, 
without  location,  without  estimation  of  value,  without 
relation  to  anything  which  could  render  it  certain,  does 
appear  to  me  to  be  the   most  vague   of  all   promises  i 

2 


18  LEADING    CASES    SIMPLIFED. 

and  if  any  contract  can  be  void  for  its  uncertainty,  this 
must  be.  One  hundred  acres  on  the  Rocky  Mountains 
or  in  the  Conestoga  Manor  ;  one  hundred  acres  in  the 
Mountains  of  Hanover  County,  Virgniia,  or  in  the 
Conewango  rich  lands  of  Adams  County  ;  one  hundred 
acres  of  George  Sherman's  mansion  phice,  at  eighty 
dolhirs  per  acre,  or  one  hundred  acres  of  his  barren 
hmds  at  five  dollars?  The  promise  is  as  boundless  as 
the  terrestrial  globe.  The  party  would  lie  at  the 
mercy  of  the  jury;  there  would  be  the  same  reason 
for  ten  thousand  dollars  damages  as  for  ten  cents. 
The  court  cannot  enforce  such  an  uncertain  promise, 
and  the  defendant  must  have  judgment." 


ZALESKI  V.  CLARK. 

[44  Conn.  218.] 


Mrs,  Johnson  asked  Mrs.  Clark,  a  widow,  if  she 
would  not  like  to  have  a  bust  of  her  dear  departed. 
Mrs.  Clark  said  she  would,  very  much.  Then  Mrs. 
Johnson  told  her  of  a  friend  of  hers,  named  Zaleski, 
who  was  a  sculptor,  and  for  whom  she  was  drumming 
up  business,  and  who  Avould  do  the  thing  in  first-class 
style.  She  wouldn't  run  any  risk,  for  she  need  not 
take  the  bust  unless  she  was  satisfied  with  it.  So  Mrs. 
Clark  concluded  to  perpetuate  the  features  of  her  hus- 
band in  plaster,  and  gave  !>.Irs.  Johnson  a  photograph, 
from    which   Zaleski    made   his   cast.     When   it   was 


FORMATION  OF  CONTRACT.  19 

finished  everybody  said  that  it  was  a  fine  piece  of  work, 
besides  being  an  accnrate  representation  of  the  de- 
ceased Clark.  But  Mrs.  Chirk  was  not  satisfied  with 
it.  When  the  sculptor  asked  her  why,  she  coukl  not 
give  any  reasons  —  it  didn't  satisfy  ^er,  that  was  all 
the  satisfaction  he  coukl  cfct.  So  he  broujjht  an  action 
for  the  price  she  had  agreed  to  pay,  and  he  lost  it. 
He  had  contracted  to  satisfy  a  woman — a  widow,  at 
that.  This  was  something  too  uncertain  for  a  court  of 
law  to  attempt  to  define.  If  the  sculptor  had  agreed 
to  make  a  bust  perfect  in  every  respect,  and  one  which 
the  defendant  ought  to  be  satisfied  with,  the  court 
miglit  have  interfered,  for  that  question  could  be  de- 
termined by  the  evidence  of  experts  on  the  subject. 
But  to  undertake  to  determine  that  she  was  satisfied 
with  it  was  a  thing  no  one  but  herself  could  do.  It 
was  a  very  unwise  agreement  for  the  plaintift*  to  make, 
but  he  had  only  himself  to  blame  for  it. 


ACCEPTANCE     MUST     BE      IDENTICAL     WITH 

OFFER. 


JORDAX  V.  NORTON. 

[4  Mee.  &  W.  155.] 

Farmer  Norton  wrote  to  Farmer  Jordan,  otferi ng  to 
buy  a  particular  mare  if  the  latter  woukl  warrant  her 


20  LEADING    CASES    SIMPLIFIED. 

'^sou7id  and  quiet  in  harness. ^^  Farmer  Jordan  wrote 
back  warranting  her  ^'' sound  and  quiet  in  double  har- 
ness,'^ but  saying  ho  liacl  never  put  her  in  single  harness. 
The  mare  was  taken  to  Norton's  l)y  an  agent,  who  ex- 
ceeded liis  authority  (and  whose  act  was  ininiediatcly 
repudiated)  and  then  —  as  the  experienced  reader  will 
have  foreseen  —  turned  out  to  Ijc  unsound.  This  was 
Farmer  Jordan's  action  for  the  price  of  the  mare,  and 
the  real  question  was  whether  or  not  there  was  a  com- 
plete contract.  This  question  was  decided  in  the 
negative.  "  The  correspondence,"  said  Baron  Parke, 
*'  amounts  altogether  merely  to  this  :  that  the  defend- 
ant agrees  to  give  twenty  guineas  for  the  mare,  if 
there  is  a  warranty  of  her  being  sound  and  quiet  in 
harness  generally,  l)ut  to  that  the  plaintilT  has  not 
assented.  The  parties  have  never  contracted  in  writing 
ad  idetn.^^  It  takes  two  to  make  a  contract,  and  those 
two  must  have  agreeing  minds.  That  being  so,  an 
otfer  must  be  assented  to  in  the  precise  terms  in  which 
it  is  made. 


ACCEPTANCE  OF  ALTERED  PROPOSAL. 


BORLAND  V.  GUFFEY. 

[1  Grant's  Cas.  394.] 

The  dramatis  personoe  of  this  case  are   four:   (1) 
FuIIwood,  an  inn-keeper  with  more  debts  than  he  can 


rORMATION   OF    CONTRACT.  21 

conveniently  pay;  (2)  Borland,  a  prospective  pur- 
chaser of  FuUwood's  inn  ;  (3)  Guffey,  a  creditor  of 
FuUwood's,  and  very  anxious  about  his  debt ;  (4)  Wil- 
liam Guffey,  his  son.  Act  I.,  Scene  1.  Borland's 
House. — Enter  William  with  a  message  from  his 
father,  that  if  Borhmd  will  not  agree  to  see  him  paid 
he  will  attach  FuUwood's  property  at  the  inn.  To 
William,  Borland  replies  that  he  will  see  his  father's 
debt  paid,  provided  he  will  not  take  out  an  attachment 
against  FuUwood's  property,  and  will  likewise  keep 
quiet  and  let  no  person  know  anything  about  it,  Scen^ 
2.  —  William  returns  from  his  errand  and  relates  what 
Borland  has  said.  Guffey,  Sr.,  replies  that  that  is  sat- 
isfactory, but  omits  to  send  William  back  with  a  mes- 
saffe  to  Borland  to  that  effect.  Nevertheless,  he  refrains 
from  attaching  the  property.  Act  II. — The  whole 
scene  is  now  in  the  Supreme  Court.  Borland  didn't 
see  him  paid,  and  Guffey  has  sued  him.  But  much  to 
his  disgust  he  is  told  that  there  was  no  contract,  for  it 
was  essential  that  Borland  should  have  been  notified 
of  his  assent  to  the  new  terms  in  his  proposal  —  the 
I'.ttle  matter  concerning  keeping  quiet.  Exeunt  omnes 
to  slow  music,  Guffey  minus  his  money. 


22  LEADING    CASES    SIMPLIFIED. 

PROPOSAL    TO  UNASCERTAINED  PERSON. 


\VILLIA3IS  V.  CAmVARI>IXE. 

[4  Barn.  &  Adol.  G21;  Langd.  Cas.  on  Con.  12.] 

William  Carwardine  caused  a  hand-bill  to  be  i)rinted 
and  distributed  which  stated  that  whoever  would  give 
8uch  information  as  would  lead  to  the  discovery  of 
the  murderer  of  his  brother,  Walter,  should  receive 
twenty  pounds.  Soon  after  this  advertisement  was 
issued,  Mary  Ann  Williams  was  badly  beaten  hy  a 
man  she  was  living  with,  and  believing  she  had  not 
long  to  live,  and  to  ease  her  conscience,  she  gave  infor- 
mation which  led  to  the  conviction  of  the  man  who 
had  beaten  her  for  the  murder  of  Walter  Carwardine. 
He  was  hanged,  but  she  recovered  and  brought  an  ac- 
tion for  the  twenty  pounds.  The  jury  found  that  other 
motives  than  the  offer  of  the  reward  had  induced  her 
to  give  the  information.  Nevertheless,  all  the  judges 
of  tlie  King's  Bench  expressed  the  opinion  that  she  was 
entitled  to  it.  Denman  C.  J.  :  "  The  plaintiff  l)y  bav- 
ins: siven  information  which  led  to  the  conviction  of 
the  murderer  of  Walter  Carwardine,  has  brought  her- 
self within  the  terms  of  the  advertisement,  and  there- 
fore is  entitled  to  recover."  LiTTLEDALE,  J.  "The 
advertisement  amounts  to  a  general  promise  to  give  a 
sum  of  money  to  any  person  who  shall  give  information 
■which  might  lead  to  the  discovery  of  the  ollender. 
The  plaintiff  gave  that  information."  Parke,  J.  : 
*'  There  was  a  contract  with  any  person  who  performed 
the  condition  mentioned  in  the  advertisement."  Pat- 
TisoN,  J  :  "  I  am  of  the  same  opinion.  We  cannot  go 
into  the  plaintiff's  motives." 


rOEIVIATION"    OF    CONTRACT.  23 

MISTAKE  AS  TO  PERSON  CONTRACTING. 


BOSTOX  ICE   C03IPAXY  v.   POTTER. 

[123  Mass.  28.] 

During  the  early  part  of  the  summer  of  1873,  the 
Boston  Ice  Company  supplied  ]Mr.  Potter,  of  the  Hub, 
with  ice  for  his  tea  and  claret,  and  for  the  household 
generally.  For  some  reason  or  other  —  perhaps  they 
gave  him  short  weight  or  too  much  straw  and  dirt  — 
he  determined  to  try  another  ice  man,  and  having  heard 
favorable  reports  of  the  Citizens'  Ice  Company  he  made 
a  contract  with  them.  For  al)out  a  year  the  wagons 
of  the  Citizens'  Company  drove  up  daily  to  the  door 
of  the  Potter  mansion,  when  one  morning  a  wagon 
of  the  Boston  Company  appeared  on  the  scene  as  of 
old.  From  that  day  forward  the  Citizens'  wagons  no 
longer  came  that  way,  but  ice  v/as  regularly  delivered 
to  Mr.  Potter's  servants  by  the  Boston  Company.  The 
reason  for  this  change  was  that  the  latter  company  had 
bought  out  the  former,  ice  wagons,  horses,  and  every- 
thing including  the  privilege  of  supplying  ice  to  the 
customers  of  the  Citizens'  Company.  But  of  this  Mr. 
Potter  was  sublimely  ignorant,  and  when  at  the  end  of 
the  season  a  bill  was  presented  to  him  for  ice,  which  had 
been  consumed  in  his  house  during  several  months, 
and  which  had  l)een  supplied  by  the  Boston  Company, 
he  refused  to  pay  it.  The  company  sued  for  the  ac- 
count, but  were  unsuccessful.  Mr  Potter,  it  was  held, 
had  never  expressed  his  assent  to  a  contract  for  ice 
with  the  Boston  Company,  and  there  was  no  imi)lied 


24  LEADING    CASES    SniPLIFIED. 

assent  on  his  part  from  his  rcccivins:  and  nsinij  the  ice. 
because  he  had  no  knowledge  that  it  was  I'lirnished  by 
the  phiintiff;  but  supposed  that  he  was  receiving  it 
from  the  Citizens'  Company.  '*  A  party"  said  Endi- 
COTT,  J.,  "has  a  right  to  select  and  determine  Avith 
wliom  he  will  contract,  and  cannot  have  another  person 
thrust  upon  him  without  his  consent.  It  may  be  of 
importance  to  him  who  performs  the  contract,  as  when 
he  contracts  with  another  to  paint  a  picture,  or  write  a 
book,  or  furnish  articles  of  a  particular  kind,  or  when 
he  relies  upon  the  character  or  qualities  of  an  individ- 
ual, or  has,  as  in  this  case,  reasons  why  he  does  not 
wish  to  deal  with  a  particular  party.  In  all  these  cases, 
as  he  may  contract  with  whom  he  pleases,  the  suffi- 
ciency of  his  reasons  for  so  doing  cannot  be  inquired 
into.  If  the  defendant  before  receiving  the  ice  or  dur- 
ing its  delivery  had  received  notice  of  the  change,  and 
that  the  Citizens  Company  could  no  longer  perform  its 
contract  with  him,  it  would  then  have  been  his  un- 
doubted right  to  have  rescinded  the  contract  and  to 
decline  to  have  it  executed  by  the  plaintiff.  But  this 
he  was  unable  to  do  because  the  plaintiff  failed  to  in- 
form him  of  that  "which  he  had  a  right  to  know.  If 
he  had  received  notice  and  continued  to  take  the  ice  as 
delivered  a  contract  would  be  implied.  A  case  in 
England  "  the  judge  added,  "  was  very  like  this.  One 
Jones,  who  had  been  in  the  habit  of  dealing  with  Brockle- 
hurst,  a  pipe-hose  manufacturer,  sent  him  an  order  for 
fifty  feet  of  leather  hose.  It  happened  that  that  very 
day  Brocklchurst  had  been  bought  out  by  Boulton,  his 
former  foreman,  who  executed  the  order  and  sent  the 
goods  to  Jones,  witliout  giving  him  notice  that  the  groods 
"were  supplied  by  Boulton  and  not   by  Brocklchurst. 


FORMATION  OF  CONTRACT.  25 

The  Court  of  Exchequer  decided  that  Boulton  could 
not  maintain  an  action  against  Jones  for  their  price."  ^ 


MISTAKE  AS  TO  SUBJECT  MATTER. 


KYLE  V.  KAVANAUGH. 

[103  Mass.  35G.] 

Mr.  Kyle  agreed  to  sell,  and  Mr.  Kavanaugh  to  buy, 
a  lot  of  land  on  Prospect  Street,  in  the  town  of  Wal- 
tham.  Now,  it  happened  rather  oddly  that  there  were 
two  Prospect  Streets  in  Waltham,  and  when  Mr.  Kav- 
anaugh was  taken  round  by  Mr.  Kyle  to  inspect  the  land 
he  had  bought,  he  found  that  it  was  on  the  other  Pros- 
pect Street,  and  was  not  the  land  he  had  been  thinking 
of  at  all.  So  Mr.  Kavanaugh  refused  to  take  it,  and 
in  this  he  was  sustained  by  the  court,  it  being  held 
that  where  one  party  was  negotiating  for  one  thing 
and  the  other  selling  another  and  different  thing,  and 
their  minds  did  not  agree  as  to  the  subject  matter, 
there  could  be  no  contract  by  which  either  could  be 
bound  ;  and  this  would  be  so  where  there  was  no 
fraud  on  either  side  —  nothing  more  than  a  mistake. 


1  Boulton  V.  Jones,  2  Hurl.  &  N.  564. 


26  LEADING    CASES    SIMrLIFIED. 

REPRESENTATIONS  AND   WARRANTIES. 


BEHN  v.  BUKXESS. 

[1  Best  &  S.  877;  3  Best  &  S.  751.] 

By  a  charter-party  dated  the  19th  of  Octo])er,  18G0, 
the  phiintifF  agreed  as  "owner  of  the  good  ship  or 
vessel  called  the  Martaban,  of  four  hundred  and 
twenty  tons  or  thereabouts,  now  in  the  port  of  Am- 
sterdam," to  proceed  to  Newport  and  there  load 
a  cargo  of  coals,  which  she  should  carry  to  Hong 
Kong.  Unfortunately,  the  good  ship,  the  Martaban, 
was  not  just  then  "  in  the  port  of  Amsterdam,"  and 
did  not  arrive  until  the  23d.  Wherefore,  when  she 
reached  Newport,  the  defendant  refused  to  load  a 
cargo  and  repudiated  the  contract.  The  plaintiff  then 
brought  an  action,  and  the  question  was  whether  the 
words  "  now  in  the  port  of  Amsterdam  "  amounted  to 
a  warranty,  the  breach  of  which  entitled  the  plaintiff 
to  repudiate  the  contract,  and  the  court  decided  that 
they  did.  "  Properly  speaking,"  said  Williams,  J., 
in  giving  judgment  in  the  Exchequer  Chamber,  "  a 
representation  is  a  statement  or  assertion  made  by  one 
party  to  the  other  before  or  at  the  time  of  the  con- 
tract of  some  matter  or  circumstance  relating  to  it. 
Though  it  is  sometimes  contained  in  the  written  in- 
strument, it  is  not  an  integral  part  of  the  contract, 
and  consequently  the  contract  is  not  broken,  though 
the  representation  proves  to  be  untrue  ;  nor  (with  the 
exception  of  the  case  of  policies  of  insurance,  at   all 


FORMATION  OF  CONTRACT.  27 

event?,  marine  policies,  which  stand  on  a  peculiar 
anomalous  footing)^  is  such  untruth  any  cause  of 
action,  nor  has  it  any  efficacy  whatever  unless  the 
representation  was  made  fraudulently,  either  by  reason 
of  its  being  made  with  a  knowledge  of  its  untruth,  or 
by  reason  of  its  being  made  dishonestly,  with  a  reck- 
less ignorance  whether  it  was  true  or  untrue.  *  *  * 
But  with  respect  to  statements  in  a  contract  descrip- 
tive of  the  subject-matter  of  it,  or  of  some  material 
incident  thereof,  the  true  doctrine,  established  by 
principle  as  well  as  authority,  appears  to  be,  generally 
speaking,  that  if  such  descriptive  statement  was  in- 
tended to  be  a  substantive  part  of  the  contract,  it  is  to 
be  regarded  as  a  warranty  ;  that  is  to  say,  a  condition 
on  the  failure  or  non-performance  of  which  the  other 
party  may,  if  he  is  so  minded,  repudiate  the  contract 
in  toto,  and  so  be  relieved  from  performing  his  part  of 
it,  provided  it  has  not  been  partially  executed  in  his 
favor." 


^  See  Carter  v.  Boehm,  post,  p.  186. 


28  LEADING   CASES   SIMPLIFIED. 


II.  —  CONSIDERATIOlSr. 


A   CONSIDERATION  NECESSARY  TO  SUPPORT 
A  CONTRACT. 


RAJSTN^  V.  HUGHES. 

[7  Term  Rep.  350.] 

More  than  a  hundred  3'^ears  ago  Mr.  Raiin  brought 
an  action  against  IsabeHa  Hughes  on  a  promise  which 
she  had  made  to  him  to  pay  him  a  sum  a  little  less 
than  one  thousand  pounds,  which  he  claimed  to  be  due 
from  the  estate  of  which  she  was  the  administratrix. 
The  Court  of  King's  Bench,  the  Court  of  Exchequer 
Chamber,  and  finally  the  highest  tribunal  in  England, 
the  House  of  Lords,  wrestled  with  the  case  for  a  long 
time,  l)ut  the  upshot  of  it  was  that  Mr.  Rann  was 
informed  that  he  could  not  recover,  as  he  had  not 
shown  any  consideration,  i.e.,  any  benefit  in  money  or 
anything  else  which  the  defendant  had  received  for 
making  the  promise.  "It  is  undoubtedly  true,"  said 
Lord  Chief  Baron  Skyxxer  "that  every  man  is  by  the 
law  of  nature  bound  to  fulfil  his  engagements.  It  is 
equally  true  that  the  law  of  this  country  supplies  no 
means,  nor  affords  any  remedy,  to  compel  the  perform- 
ance of  an  airreement  made  without  sufficient  consid- 


CONSIDERATION.  29 

eration.  Sucli  agreement  is  nudum  imctum  ex  quo  non 
oritur  actio,''  the  Latin  he  quoted  ])eiug  an  ancient 
maxim,  which  being  done  into  English  reads:  "No 
cause  of  action  arises  from  a  bare  promise." 


ADEQUACY  OF  CONSIDERATION  IMMATERIAL. 


BAINBREDGE  v.  FIRMSTOXE. 

[8  Ad.  &  E.  743 ;  Langd.  Cas.  on  Con.  200.] 

Firmstone  was  worse  than  tlie  man  who  would  bor- 
row your  umbrella  on  a  rainy  day  and  then  forget  to 
return  it ;  for  Firmstone  would  not  only  not  return  it, 
but  if  you  should  remind  him  of  the  circumstance 
would  tell  you  that  if  you  wanted  your  umbrella  you 
would  have  to  hire  the  sheriff  to  get  it  for  you.  For 
this  is  exactly  the  way  he  served  Bainbridge.  The 
latter  owned  two  boilers,  and  one  day  Firmstone  came 
to  him  and  told  him  that  he  would  like  to  borrow 
those  boilers,  and  take  them  over  to  his  place  and  put 
them  on  his  scales  and  see  how  much  they  weighed. 
Now,  as  Firmstone  did  not  want  to  buy  the  boilers,  or 
to  use  them  in  any  other  w:iy,  this  was  rather  an  odd 
request.  But  Firmstone  promising  to  return  them  in 
good  order,  Bainbridge,  the  accommodating  neighbor 
that  he  was,  let  him  have  them.     Sad  to  relate  he  broke 


30  LEADING   CASES   SIIMPLIFIED. 

his  promise,  and  when  Bainbridge  brought  an  actioii 
laughed  in  his  sleeve,  for  he  had  read  enough  hiw  to 
know  that  a  contract  without  a  consideration  won't 
hold,  and  what  consideration  is  there  in  giving  one  an 
opportunity  to  weigh  boilers,  argued  he.  But  Lord 
Denman,  C.  J.,  thought  the  suit  was  "well  enough. 
The  defendant  had  some  reason  for  wishing  to  weigh 
the  boilers,  and  he  could  do  so  only  by  obtaining  per- 
mission from  the  plaintiff,  which  he  did  obtain  by 
promising  to  return  them  in  good  condition.  We 
need  not  inquire  what  benefit  he  expected  to  derive. 
The  plaintiff  might  have  given  or  refused  leave." 
And  Pattison,  J.,  thought  so  too.  *' I  suppose  the 
defendant  thought  he  had  some  benefit,"  said  he,  '*  at 
any  rate  there  is  a  detriment  to  the  plaintiff"  from  his 
parting  with  the  possession  for  even  so  short  a  time." 
So  that  merely  "allowing  to  weigh"  is  a  sufficient 
consideration  for  a  promise. 


BUT  CONSIDERATION  MUST  BE  REAL. 


WHITE    V.   BLUETT. 

[23  L.  J.  (Exch.)  3G.] 

A  son  had  been  constantly  complaining  to  his  father 
that  he  did  not  give  him  as  much  money  or  the 
same  advantages  that  he  gave  the  rest  of  the  family. 


CONSIDERATION.  31 

Finally,  one  day,  he  proposed  a  treaty  of  peace.  "  If 
you  won't  ask  me  to  pay  that  note  of  mhie,  I  won't 
bother  you  about  these  thhigs  any  more,"  said  the 
son.  "All  right,"  replied  the  father,  who,  some  time 
after,  died,  without  destroying  it  or  giving  it  up. 
When  the  executors  came  in,  they  found  the  note 
among  his  papers,  and  brought  an  action  on  it  against 
the  son,  who  pleaded  liis  father's  promise,  without 
avail.  "Is  an  agreement,"  cried  Baron  Parke,  with 
astonishment,  "is  an  agreement  by  a  father,  in  con- 
sideration that  his  son  will  not  bore  him,  a  binding 
contract?  Fudge!"  His  lawyers  tried  to  convince 
the  other  judges  that  it  was,  but  with  the  same  success. 
*' If  such  a  plea  as  this  could  be  supported,"  said 
Chief  Baron  Pollock,  "the  following  would  be  a 
binding  promise  :  A  man  might  complain  that  another 
person  used  the  public  highway  more  than  he  ought 
to  do  ;  and  that  other  might  say,  '  Do  not  complain, 
and  I  will  give  you  five  pounds.'  It  is  ridiculous  to 
suppose  that  such  promises  could  be  binding.  So, 
if  the  holder  of  a  bill  of  exchange  were  suing  the 
acceptor,  and  the  acceptor  were  to  complain  that  the 
holder  had  treated  him  badly,  or  that  the  bill  ought 
never  to  have  been  circulated,  and  the  holder  were  to 
say,  '  Now,  if  you  will  not  make  any  more  complaints 
I  will  not  sue  you,'  such  a  promise  would  be  like  that 
now  set  up.  In  reality  there  was  no  consideration 
whatever.  The  son  had  no  right  to  complain,  for  the 
father  might  make  what  distribution  of  his  property 
he  liked,  and  the  son's  abstaining  from  doing  what  he 
had  no  right  to  do,  can  be  no  consideration," 


32  LEADING   CASES   SIMPLIFIED. 


FORBEARANCE  TO  SUE  A  SUFFICIEXT 
CONSIDER  A  TION 


HOCIiENBUKY  V.  »IEYERS. 

[34  N.  J.  (L.)  31G.] 

Mrs.  Meyers  held  John  Ilockeiibury'snote  for  $1,000 
"which  was  overdue  and  un[):iid,  and  she  threatened  to 
sue  him  unless  he  could  find  security.  He,  therefore, 
wrote  to  his  brother  Asa,  tellini^  him  the  fix  he  was  in, 
and  to  pacify  the  lady,  Asa,  who  douljtless  was  a  man 
of  substance,  put  his  name  on  the  back  of  the  note. 
Two  years  more  passed  without  Mrs.  Meyers  seeing  her 
money  and  then  she  lost  all  patience  and  did  sue. 
*' You  can't  get  anything  out  of  me,"  chuckled  Asa, 
*'  because  my  jDromise  was  voluntary  and  without  con- 
sideration." But  the  court  gave  judgment  against  him 
on  the  orround  that  forbearance  to  sue  was  enouirh  to 
support  a  contract. 


PROVIDED  THERE  IS  A  LEGAL  CAUSE  OF 
ACTION. 


PAJLFREY  V.  PORTLAND,  ETC.,  R.  CO. 

[4  Allen,  65.] 

One  of  the  glories  of  the  common  law  was  to  cieny  an 
action   for  damajres  occasioned   bv  the  death  of  a  hu- 


COXSIDERATIOX.  33 

man  being.  A  very  disagreeable  personage,  that 
figures  in  the  law  reports  with  great  frequency,  is  the 
modern  corporation,  which,  recognizing  its  lack  of 
a  body  to  be  kiclced  or  a  soul  to  be  damned,  gen- 
erally manages  to  crawl  out  of  its  obligations  and 
evade  its  liabilities  by  the  help  of  very  technical  and 
nnrio-hteous  defenses.  Between  these  two  Mrs.  Pal- 
frey  came  to  grief,  as  was  not  strange.  Her  hnsband 
had  been  killed  on  a  train  belonging  to  the  Port- 
land, Saco  and  Portsmouth  Railroad  Compain^  un- 
der circumstances  of  the  most  atrocious  negligence 
on  the  part  of  the  company.  Its  officers  agreed  to 
pay  her  fifty  dollars  a  month  dnring  her  life  if  she 
would  not  sue  them.  They  carried  out  their  agreement 
for  four  years,  and  then  having  discovered  that  there 
was  no  statute  in  Massachusetts  or  Maine  allowing  an 
action  against  u  railroad  for  killing  its  passengers  or  its 
employees,  they  told  her  to  go  the  —  Avork-housc,  for 
she  had  seen  the  last  dollar  of  their  money.  When 
she  sued  them  on  their  promise,  they  replied  that  it 
was  without  consideration  and  void,  and  the  court  v\'as 
obliged  to  give  judgment  in  their  favor,  because,  for- 
bearance to  sue  is  a  good  consideration,  only  where 
there  is  a  legal  cause  of  action. 

3 


34  LEADING    CASES    SIMPLIFIED. 


PROMISE    TO  DO  WHAT  PARTY  IS   BOUND    TO 
DO  INSUFFICIENT. 


REY:N0LDS  v.  NUGENT. 

[25  Ind.  328.] 

There  is  nothing  to  show  that  Mr.  Reynolds,  of  In- 
diana, ever  distinguished  himself  in  the  late  war, 
though  at  one  tiine  his  services  were  certainly  at  a  pre- 
mium. The  township  of  Tobin  offered  him  a  hundred- 
dollar  bounty  if  he  would  be  one  to  fill  their  quota  of 
the  draft ;  he  accepted,  signed  the  roll,  and  pocketed 
the  money.  But  on  his  way  with  Nugent,  the  recruit- 
hig  officer,  to  be  mustered  in,  an  agent  from  Evans- 
ville  came  along,  offering  $350  bounty  for  recruits, 
"If  you  want  to  keep  me,"  said  Reynolds,  when  he 
heard  this,  "you  have  got  to  come  up  to  Evansville's 
offer."  "  ^ye  will  do  it,"  said  Nugent.  Reynolds 
was  satisfied,  and  went  to  the  war.  In  1865  he  turns 
up  again  in  a  suit  for  the  $250,  which  Nugent  had  not 
yet  paid  him.  Hard  to  relate,  this  patriotic  veteran 
was  told  by  the  court  that  there  was  no  contract,  be- 
cause there  was  no  consideration.  A  promise  to  do 
what  a  person  is  bound  to  do  by  law  is  not,  they  said, 
a  good  consideration  for  another  promise.  If  Rey- 
nolds had  been  a  witness,  subpoenaed  to  give  his  evi- 
dence in  a  lawsuit,  and  had  refused  to  go  unless  he 
was  paid  extra, ^  or  if  he  had  been  a  sailor  who  had 
agreed  for  a  certain  sum  to  work  a  certain  voyage,  and 


'  Collins  V.  Godefroy,  1  Barn.  &  Adol.  949. 


CONSIDERATION.  35 

"when  half  way  through,  he  had  refused  to  reef  a  sail 
until  the  captain  promised  him  more  pay,^  in  neither  of 
these  cases  could  he  have  brought  an  action,  for  ho 
would  have  only  promised  to  do  what  it  was  already 
his  legal  duty  to  do.  And  that  was  just  what  was  the 
matter  here.  Nugent  had  promised  him  thc>  $250  to  do 
what  he  was  already  bound  to  do  by  his  contract,  and 
this  was  not  a  legal  consideration  for  a  contract. 


CUMBER  V.  WANE. 

[1  Stra.  42G;  1  Smith  Ld.  Cas.  439.] 

Wane  owed  Cumber  some  $75,  and  wondered  how 
he  should  pay  it.  In  a  genial  moment  Cumber  rejoiced 
his  debtor's  heart  by  telling  him  that  if  he  paid  $25  it 
would  do.  Wane  thanked  him,  sat  down  quickly  and 
wrote  out  his  promissory  note  for  that  amount.  But 
after  a  while  Cumber  repented  of  his  generosity,  and 
went  to  law  for  the  whole  amount.  Wane  pleaded 
that  the  plaintiff  had  agreed  to  accept  $25  in  full  satis- 
faction of  the  debt  of  $75,  and  that  he  had  paid  the  $25. 
This,  though  perfectly  true,  was  not  considered  a  satis- 
factory plea,  and  the  unfortunate  Wane  was  compelled 
to  pay  the  remaining  $50.  The  reason  was  that  as 
Cumber  was  entitled  to  the  $25  all  the  time,  there  was 
no  consideration  for  his  promise  to  relinquish  the  resi- 

»  Stilk  V.  Myrick,  2  Camp.  317. 


3n  LEADING   CASES   SIMPLIFIED. 

tluc.  Some  philosopher  has  said  that  it  is  easy  to  bo 
■wise  after  the  fact.  So  thought  "Wane,  as  he  reflected, 
that  if  he  had  only  said  to  ('unil)er,  "  I'll  give  you  my 
note  for  $25,  niid  a  pipeful  of  tobacco,"  or  "  Til  pay 
you  $25  ou  account,  and  give  you  my  old  pocket-knife 
in  satisfaction  of  the  balance,"  there  would  have  been 
a  good  contract  with  a  good  consideration. 


MORAL  OBLIGATION  INSUFFICIENT. 


COOK  T.  BRADLEY. 

[7  Conu.  57;  18  Am.  Dec.  79.] 

Cook  pere  was  poor  ;  Cook  fils  was  rich.  The  father 
must  have  been  very  poor  indeed,  for  he  was  obliged 
to  get  his  necessary  food  and  clothing  from  Bradley  on 
credit.  The  son,  hearing  tiiat  he  already  owed  Bradley 
$60,  which  he  could  never  pay,  wrote  to  Bradley,  tell- 
ing him  that  he  considered  the  debt  one  that  he  (the 
son)  was  under  an  obligation  to  pay.  By  and  by 
Cook  Jils  died,  and  Bradley  endeavored  to  collect  the 
amount  from  his  estate.  But  he  found  this  a  very 
difficult  matter.  The  court  into  which  he  brought  the 
letter  suggested  first  that  it  would  be  necessary  for 
him  to  show  some  consideration  for  the  promise. 
*<  The  goods  I  supplied  the  old  man  with  were  neces- 


CONSIDERATION.  37 

sarics,  and  the  son  was  legally  ol)ligated  to  pay  them." 
*'  Not  so,"  answered  the  court ;  "  a  son  is  not  bound 
by  law  to  pay  past  expenditures  of  his  parents." 
*'At  any  rate,"  replied  Bradley,  "he  was  under  a 
moral  o])ligation  to  support  his  father."  *'  Right  you 
are,"  returned  the  court ;  "  but  tha.t  will  not  help  you, 
for  we  cannot  find  a  case  in  the  books  in  which  it  has 
been  held  that  a  moral  obligation  is  a  sufficient  con- 
sideration for  an  express  promise.  In  fact  there  are  a 
good  many  to  the  contrary,  and  we  must  give  judg- 
ment against  you,"  which  they  immediately  proceeded 
to  do. 


BEAUMONT  T.  REEVE. 

[8  Q.  B.  483.] 

Henry  Reeve  seduced  Caroline  Beaumont.  They 
lived  together  for  about  five  years,  when  they  resolved 
to  separate.  In  consideration  of  the  cohabitation. 
Reeve  promised  to  pay  her  an  annuity  of  £60  a  year. 
But  the  seducer  was  also  a  liar,  and  this  was  an 
action  for  arrears.  It  was  held,  however,  that  there 
was  no  legal  consideration  for  Reeve's  promise,  and 
the  woman  must  do  without  the  annuity. 

The  student  must  clearly  understand  that  it  was  not 
because  the  contract  was  illegal  that  it  was  held  to  be 
void, — there  was  no  illegality  about  it,  —  but  simply 
because  there  was  not  what  the  law  counts  a  considera- 
tion for  Air.  Reeve's  promise  ;  so  that  if  the  contract 


38  LEADING    CASES    SIMPLIFIED. 

had  heen  under  seal  (where  considerations  are  unneces- 
sary) it  would  have  been  binding  on  him.  If,  how- 
ever,  future  and  not  past  cohabitation  were  the  con- 
sideration, such  a  consideration  would  be  illegal,  and 
Would  vitiate  even  the  contract  under  seal. 


PAST  CONSIDERATION. 


BULKLEY  V.  LAXDOX. 

[2  Conn.  404.] 

Bulkley,  Someryndike  &  Co,  brought  an  action 
against  the  representatives  of  the  firm  of  Smith,  Tay- 
lor &  Co.,  of  New  York.  In  their  declaration  they 
alleged  that  the  defendants,  in  consideration  that  the 
plaintiffs  ivould  indorse  a  note  signed  by  a  third  per- 
son, promised  that  they,  the  defendants,  would  hold 
themselves  liable  in  the  same  manner  as  though  they 
had  signed  it  with  their  names.  The  promise,  which 
was  in  writing,  when  brought  into  court  hardly  bore 
out  their  statement,  for  it  was  in  these  words :  — 

New  York,  August  27,  1814. 
Messrs.  Bulkley,  8 ornery ndUce  &  Co.  — 

Gentlemen  :  In  consideration  of  your  having  in- 
dorsed the  undermentioned  notes  drawn  by  David  Tay- 
lor in  your  favor,  Ave  hereby  hold  ourselves  accountable 
to  you  for  them  in  the  same  manner  as  though  said 
notes  were  drawn  by  us. 

Smith,  Taylor  &  Co. 


CONSIDERATION.  39 

Though  tlic  decision  was  made  l)y  the  court  on  a 
question  of  pleading  —  which  by  the  way  is  the 
mode  in  which  most  of  the  rulings  on  this  point  oc- 
curred —  a  very  iin[)ortant  princi[)lo  in  the  law  of  con- 
sideration for  contnicts  was  announced,  though  not  for 
the  first  time,  l)y  any  means.  This  principle  is  that 
a  promise  foundcul  on  a  past  consideration  is  not 
binding  ;  and  though  the  plaintiffs  had  tried  to  make 
a  good  case  by  saying  "  loould  indorse,"  the  writing 
itself,  which  was  the  only  evidence  of  the  alleged  con- 
tract, said  having  indorsed,  —  a  mere  difference  in 
tenses,  to  be  sure,  but  enough  to  put  the  j)laintiffs  out 
of  court. 


LA3IPLEIGH  v.   BRATHWAIT. 

[Hob   105;  1  Smith's  Ld.  Cas.  222.] 

Thomas  Brathwait  slew  Patrick  Mahume.  But 
kings  were  kings  then,  and  the  murderer  was  for- 
tunate enough  to  have  a  friend  at  court.  To  this  friend, 
then,  he  resorted  in  his  need,  and  begged  him,  in  the 
name  of  all  that  was  charital)le,  to  go  to  the  king,  and 
intercede  for  his  life.  Touched  by  the  appeal,  this 
friend,  — Lampleigh  was  his  name,  —  consented  to  see 
what  could  be  done,  and  "  did  by  all  the  means  he 
could  and  many  days'  labor  do  his  endeavor  to  ol)tain 
the  king's  pardon  for  the  said  felony,  viz.,  in  riding 
and  journeying  at  his  own  charges  from  London  to 
Royston,  when  the  king  was  there,  and  to   London 


40  LEADING    CASES    SIMrLIFIED. 

back,  unci  so  to  and  from  Nowinarkct  to  obtain  pardon 
for  the  dofendaut  for  the  said  felony."  After  Lamp- 
leigh  had  taken  all  the  journeys,  and  been  put  to  all 
this  trouble,  Brathwait,  as  some  slight  recognition  of 
his  services,  promised  to  give  him  £100.  But  the 
storm  blew  over ;  Brathwait  cheated  the  hangman ; 
and  now  proposed  to  cheat  Lampleigh,  too.  In  answer 
to  Lampleigh's  gentle  reminder  of  the  i)romise  to  give 
him  £100,  Brathwait  replied  very  learnedly  that  no 
promise  is  binding  unless  it  is  founded  on  a  sufficient 
consideration,  and  that  what  Lampleigh  had  done  was 
a  mere  voluntary  courtesy^  quite  insufficient  to  sujjport 
apromise.  "  No,"  said  Lampleigh,  with  much  sounder 
learning,  as  the  event  proved,  "  it  was  not  a  mere  vol- 
untary courtesy.  You  asked  me  to  do  it,  and  that 
asking  saved  it  from  being  a  mere  voluntary  courtesy, 
and  made  it  a  sufficient  consideration  to  found  a  sub- 
sequent promise  on."  The  court  thought  so,  too. 
Services  rendered  in  the  past,  however  eminent,  are 
not  generally  a  sufficient  consideration  to  support  a 
promise.  But  a  past  consideration  will  support  a 
promise,  when  it  consists  of  services  rendered  by  the 
plaintiff  at  the  defendant's  request.  As  this  was 
exactly  Lampleigh's  case,  he  got  his  £100. 

Yet  before  he  got  it,  he  had  to  overcome  another 
objection,  which  the  ungrateful  Brathwait  interposed. 
"  It  doth  not  appear,"  said  Brathwait,  "  that  he  did 
anything  towards  the  obtaining  of  the  pardon  but  rid- 
ing up  and  down  and  nothing  when  became  there." 
But  the  court  said  that  did  not  matter,  for  labor, 
though  unsuccessful,  may  form  a  valuable  considera- 
tion. 


PARTIES.  41 


III.  — Parties. 


CONTRACTS  OF  INFANTS  VOIDABLE  AND  VOID. 


FETROW  V.  WISEMAN. 

[40  Ind.  148 ;  Ewell  on  Dis.  of  luf .  22.] 

Siimuel  Wiseman  (his  acts  certainly  belied  bis  name) 
took  a  promissory  note,  payable  to  himself,  from 
Joseph  Fetrow,  with  Joseph's  son  John  as  surety. 
John  was  at  the  time  an  infant  —  i.e.,  not  yet  twenty- 
one  years  of  age.  This  was  his  first  foolish  proceed- 
ing. Being  unable  to  make  the  amount  out  of  the  old 
man,  his  next  move  was  to  sue  the  youngster,  but 
when  John  appeared  in  court  he  pleaded  the  "  baby 
act."  The  court  decided  in  the  infant's  favor,  and  the 
plaintiff  went  home  a  much  wiser  man.  "The  contracts 
of  an  infant,"  said  the  court,  "  are  of  three  kinds  :  void, 
valid  and  voidable.  An  agreement  which  he  makes, 
which  is  ille2:al  because  aijainst  a  statute  or  a  rule  of 
public  policy,  or  a  contract  which  he  has  no  power  to 
make  at  all,  as  appointing  an  agent  or  attorney  in  fact, 
is  absolutely  void.  A.  contract  for  necessaries,  on  the 
other  hand,  is  as  binding  on  the  infant  as  if  he  were 
an  adult.     All  other  contracts  made  by  an  infant  are 


42  LEADING    CASES    SIMPLIFED. 

voidable  only,  and  when  he  comes  of  age  he  may  ratify 
them  and  become  lial)le  on  them.  This  contract  of 
suretyship  was  of  the  latter  kind .  John  might  disaffirm 
or  ratify  it  at  his  option,  and  as  he  had  taken  the 
former  course,  he  could  not  be  made  liable  upon  it." 


EXCEPT  FOR  NECESSARIES. 


PETERS  V.  FLEJ^UXG. 

[G  Mee.  &  W.  42 ;  Ewell  on  Dis.  of  Inf.  5G.] 

Mr.  Fleming  was  one  of  those  fast  collegians  whose 
efforts  have  contributed  so  liberally  towards  the  set- 
tlement of  the  law  of  "necessaries"  for  infants. 
During  his  career  at  the  University  of  Cambridge,  and 
wdiile  under  age,  he  became  indebted  to  a  jeweller  in 
the  town  for  several  articles  of  ornament  which  were 
supplied  to  him  on  tick.  Fleming,  ^jere  who  was  a 
wealthy  member  of  Parliment,  and  could  easily  have 
paid  it  if  he  had  liked,  wouldn't  look  at  the  bill  when 
it  was  sent  in ;  if  he  had,  this  is  what  he  would  have 

seen  :  — 

£       s.       d. 

A  fine  gold  ring 1  8  0 

A  ring,  engraved  crest,  etc       ....  0  18  0 

A  short  gold  watch  chain 2  2  0 

A  pair  of  pins 0  18  0 

A  ring 1  'o  0 

A  ring 1  5  0 

A  ring  repaired,  new  stone       ....  036 

8  0  6 


PARTIES. 


43 


So  the  dealer  brought  an  action  against  the  young 
man  himself  when  he  became  of  age,  and  (the  judge 
having  left  it  to  the  jury  to  say  whether  tlie  aili- 
cles  were  "necessaries"  or  not,  and  they  having 
found  that  they  were,)  he  got  his  money.  But 
Mr.  Fleming  was  not  satisfied  ;  he  desired  the  opinion 
of  the  Court  of  Exchequer  on  this  interesting  i)oint. 
He  soon  got  it,  and  found  it  no  more  satisfactory  than 
that  of  the  jury,  for  the  court  agreed  in  every  respect 
with  the  verdict. 

*'  The  true  rule,"  said  Parke,  B.,  "  I  take  to  be  this, 
that  all  such  articles  as  are  purely  ornamental  are  not 
necessary  and  are  to  be  rejected,  because  they  cannot  be 
requisite  for  anyone  ;  and  for  such  matters,  therefore, 
an  infant  cannot  be  made  responsible.  But,  if  they 
are  not  strictly  of  this  discription,  then  the  question 
arises,  whether  they  were  bought  for  the  necessary  use 
of  the  party  in  order  to  support  himself  pro  perl  ij  in  the 
degree,  state  and  station  of  life  in  ivJtich  he  moved;  if 
they  were,  for  such  articles  the  infant  may  be  respon- 
sible." 


HUNT  V.  PEAKE. 

[5  Cow.  475;  15  Am.  Dec.  475.] 

A   half  a  century  ago,  in    the  State  of  New  York, 
young  Alexander  Peake  told  pretty  Polly  Hunt  that 
he  would  marry  her.     But  he  didn't  do  it,  and  so  she 
sued  him  in  an  action  for  breach  of  promise  of  mar 
riage.    "Was  Alexander  twenty-one   years  old    when 


44  LEADING    CASES    SIMPLIFIED. 

he  Siiid  he  would  marry  you?"  asked  the  court,  and 
Polly  Avas  obliged  to  admit  that  he  was  not.  TIumi  the 
kind-hearted  judge,  with  a  savage  name,  had  to  tell  her 
that  he  was  sorry  for  her,  but  the  law  could  not  help 
her.  For  in  the  time  when  George  II.  was  kino-  of 
England  there  was  a  young  lady  of  fifteen,  who  was 
told  by  the  owner  of  the  name  (who  was  over  twenty- 
one)  that  she  should  be  INIrs.  Ward  Clarencieux.^ 
But  ho  was  a  gay  deceiver,  and  married  some  one  else, 
and  she  sent  him  a  note  by  the  sheriff  that  she  con- 
sider<Ml  it  worth  £4,000  to  miss  having  such  a  pretty 
name.  The  jury  thought  it  was  worth  half  that  sum, 
at  least,  and  then  Mr.  Clarencieux  retained  the  best 
lawyers  England  had  at  that  time,  who  made  a  fine 
argument  in  Westminster  Hall,  which  lasted  several 
davs,  tivinsfto  convince  the  indues  that  he  ouii'ht  not  to 
be  ol)liged  to  pay  the  money.  But  it  was  no  use.  The 
judges  said  that  an  infant's  promise  was  not  binding, 
except  for  necessaries,  and  a  wife,  notwithstanding  St. 
Paul,  was  not  a  "  necessity."  But  if  a  person  of  full 
aii'e  and  an  infant  aorreed  to  marrv  each  other,  the  for*. 
mer  would  be  bound  while  the  latter  would  not. 
Therefore,  this  young  lady  of  fifteen  could  bring  an 
action  against  Mr.  Clarencieux,  who  had  reached  his 
majo'.'ity. 

"  But,  therefore,"  concluded  Savage,  C.J. ,  "Polly 
could  not  sue  Alexander." 


1  Holt  V.  Clarencieux,  2  Stra,  937. 


PARTIES.  45 


HUSBAND  AXD   WIFE. 


MANBY  V.  SCOTT. 

[1  Sid.  10'.);  2  SmiUi'.s  Ld.  Cas.  407.] 

Sii*  Edward  Scott,  ii  respcctul)!©  ])aronct  of  the 
seventeenth  century,  was  not  fortunate  in  his  choice  of  a 
wife.  The  hidy  was  fast,  and  the  gentleman  was  slow  ; 
and  they  failed  to  hit  it  off  together.  Probably, 
therefore,  it  was  to  the  no  small  relief  and  satisfaction 
of  the  worthy  baronet  when  Dame  Scott,  as  the  re- 
porters call  her  ladyship,  determined  to  seek  fresh 
woods  and  pastures  new,  and  went  right  away.  The 
good  easy  man  had  not  enjoyed  such  peace  since  the 
days  of  his  bachelorhood.  Twelve  years  passed  away, 
and  one  day,'  at  the  stately  home  of  England  inha])ited 
by  Sir  Edward  Scott,  there  turned  up  an  exceedingly 
seedy  looking  female,  who  announced  herself  as  Lady 
Scott,  and  the  mistress  of  all  she  surveyed.  Her  rights, 
however,  were  very  soon  disputed.  The  baronet  was 
a  sensible  person,  and  his  pampered  menials  soon  sent 
the  old  woman  about  her  business. 

This  action  was  brought  by  a  merchant  who,  although 
Sir  Edward  had  expressly  told  him  not  to  do  so,  had 
supplied  Lady  Scott  with  silks  and  satins  during  the 
time  she  was  living  away  from  her  husl)and.  The 
reader  will  scarcely  be  surprised  to  hear  that  Mr. 
Manby  did  not  obtain  a  satisfactory  settlement  of  his 
little  bill,  and  Manby  v.  8cott  is  the  chief  authority 
for  the  principle  that  the  wife's  contract  does  not  bind 
the  husband  unless  she  act  by  his  authority. 


46  LEADING   CASES   SIMPLIFIED. 

MONTAGU  V.  BENEDICT. 

[3  Barn.  &  Cress.  GSl ;  2  Smith's  Ld.  Cas.  427.] 

Mr.  Benedict,  (the  name,  as  students  of  Shakespeare 
will  have  surmised,  is  a  fancy  one)  was  a  hard-working 
lawyer  who  lived  in  a  furnished  house  which  he  rented, 
and  which  was  by  no  means  elegant  in  its  appoint- 
ments. Indeed,  ho  did  not  keep  a  man-servant,  and 
these  two  facts  were  of  importance  when  he  came  to  be 
sued  by  Mr.  Montagu,  jeweller,  who  had  sold  Mrs. 
Benedict  several  hundred  dollars  worth  of  expensive 
jewelry  without  his  knowledge.  In  an  action  by  the 
jeweller  against  the  husband  it  was  unanimously  held 
that  the  goods  were  not  necessaries,  and  he  could  not  be 
compelled  to  pay  for  them.  Montagi(,  v.  Benedict 
lays  down  the  hiw  of  husband  and  wife  this  far :  If  a 
man  without  any  just  cause,  turns  away  his  wife,  he 
is  bound  by  any  contract  she  makes  for  necessaries 
suitabh;  to  her  position  and  estate,  and  it  is  the  same 
if  they  live  together  and  he  does  not  supply  her  with 
necessaries.  When  he  himself  provides  her  with  ne- 
cessaries, he  is  not  liable  on  her  contracts  unless  he 
assents  to  them,  but  his  assent  may  be  either  express 
or  implied.  But  the  goods  must  be  necessaries,  and 
in  this  case  they  were  clearly  not,  for  Mrs.  Benedict 
would  have  been  in  a  better  business  if  she  had  laid  out 
the  money  for  new  furniture  for  the  house  instead  of 
useless  ornaments  which  would  so  ill  correspond  with 
the  old. 


PARTIES.  47 


SEATOX  V.   BEXEDICT. 

[5  Bing.  28;  2  Smith's  Ld.  Cas.  432.] 

Mr.  and  Mrs.  Benedict  reappear  on  the  boards. 
After  the  little  affair  of  the  jewelry,  they  left  the  city 
and  went  to  live  in  the  country.  But  even  in  the  se- 
clusion of  the  peaceful  hamlet  where  they  settled  Mrs. 
Benedict  i)ursMed  lier  extravasjant  wars.  She  became 
indebted  to  a  local  store-keeper  for  gloves,  ribbons, 
muslins,  laces,  and  silk  stockings,  and  finally  the  mer- 
chant sued  the  husband.  The  goods  supplied  were 
unquestionably  necessaries,  but  then  Mr.  Benedict  had 
always  duly  furnished  his  wife  with  necessary  apparel 
and  knew  nothing  of  her  clandestine  dealings  with 
Seaton  ;  and  on  this  ground  the  plaintiff  was  disap- 
pointed in  his  expectations  of  getting  paid.  "  It  may 
be  hard,"  said  Best,  C.  J.,  "  on  a  fashionable  milliner 
that  she  is  precluded  from  supplying  a  lady  without 
previous  inquiry  into  her  authority.  The  court,  how- 
ever, cannot  enter  into  these  little  delicacies,  but  must 
lay  down  a  law  that  shall  protect  the  husband  from 
the  extra vaijance  of  his  wife." 


DEBENHAM  v.  ]>IEL,i:,0]S^. 

[6  App.  Cas.  24.] 

A  prudent  man  was  Mr.  Mellon.     He  gave   his  wife 
an  allowance  of  $260  a  year  for  dresses  and  pin-money. 


48  LEADING    CASES    SIMI'LIFIED. 

and  also  informed  her  that  ho  was  not  going  to  pay 
for  any  dry  goods  or  millinery  she  might  choose  to 
buy  on  credit  —  she  must  get  along  on  what  she  liad. 
In  spite  of  this  distinct  prohibition,  Mrs.  ^Mellon 
favored  a  certain  store-keeper,  one  Debenham,  with 
substantial  orders  for  dresses,  etc.,  and  he,  by  and  hv, 
favored  Mr.  Mellon  with  a  substantial  Christni:is  1)111. 
This  Mr.  Mellon  absohitely  declined  to  have  an3'lhiiig 
to  do  with,  and  litigation  ensued.  The  store-keeper 
had  not  known  that  Mr.  Mellon  had  expressly  l'orl)i(hIen 
his  wife  to  incur  surreptitious  debts,  and  the  goods  he 
had  supplied  were  what  the  law  calls  "  necessaries,"  so 
he  felt  confident  of  success.  The  judges,  however,  de- 
cided against  him,  and  thus  *'  carried  to  its  logical  results 
the  principle  that  the  wife's  authority  to  bind  her  hus- 
band is  a  mere  question  of  agency."  ^  Then  the  store- 
keeper (aided  by  his  brother  dry-goods  dealers,  and 
shoemakers,  and  jewellers,  who  were  much  alarmed  at 
this  announcement  of  the  law)  went  to  the  great  ex- 
pense of  employing  very  eminent  counsel,  and  taking 
the  case  to  the  House  of  Lords.  But  that  tribunal, 
the  hiijfhest  in  England,  was  of  the  same  opinion  as 
the  judges  below.  "  The  fact,"  said  Lord  Black- 
BURX,  "  of  a  man  living  with  his  wife  always  adbrds 
evidence  that  he  intrusts  her  with  such  authorities  as 
are  ordinarily  given  to  a  wife.  In  the  ordinary  case 
of  the  management  of  a  household,  the  wife  is  t!ie 
manager,  and,  with  such  tradesmen  as  a  butcher  or  a 
baker,  she  would  have  authority  to  pledge  her  hus- 
band's credit ;  but  even  then  I  do  not  think  the  pre- 
sumption would  arise,  if  the    husband   gave    her  the 


1  Jolly  V.  Rces,  15  C.  B.  (x.  s.)  028. 


TAKTIES.  49 

means  to  procure  the  articles  without  credit.  In  the 
present  case,  however,  your  lordships  have  to  d(!tcr- 
niine  whether  the  wile  hud  a  mandate  to  order  clothes, 
which  it  would  ho  pro^xu"  for  her  in  her  station  of  life 
to  have,  although  the  husl)and  had  forbidden  her  to 
pledge  his  credit,  and  had  given  her  money  to  buy 
clothes  *  *  *  I  am  of  o[)inion  that  there  is  noth- 
ing to  authorize  our  holdiuix  th:it  the  wife  had  author- 
ity  to  pledge  her  husband's  credit.  I  agree  that  if  he 
knew  that  she  had  got  credit,  and  had  allowed  the 
tradesmen  to  suppose  that  he  sanctioned  the  transac- 
tions with  them,  it  might  well  be  agreed  that  there 
was  such  evidence  of  authority,  that  ho  could  not 
revoke  it  Avithout  giving  notice  of  the  revocation  to 
all  who  had  acted  upon  the  faith  of  his  sanction.  The 
general  rule  would  be  that  which  I  have  stated  ;  but 
where  an  agent  is  clothed  with  an  authority  which  is 
afterwards  revoked,  those  who  have  dealt  with  him 
have  a  ri2:ht  to  sav,  unless  the  revocation  has  been 
made  known  to  them,  that  the  principal  is  precluded 
from  denying  the  continuance  of  that  authority,  in  the 
continuance  of  which  ho  has  induced  them,  as  reason- 
alile  persons,  to  believe.  There  have  been  many  cases 
where  a  husband  has  sanctioned  his  credit  l)eing 
thus  pledged  by  his  wife  ;  but  there  is  no  such  case 
liere.  I  cannot  agree  that  the  cases  have  established 
that  the  fact  of  a  wife  living  with  her  husband  alone 
entitles  tradesmen  to  [)resunie  that  the  husband  has. 
given  an  authority  wliicli  he  is  precluded  from  after- 
wards denying.  I  think  that  in  such  a  case  it  is  open 
to  the  husband  to  prove,  if  he  can,  that  such  an  au- 
thority does  not,  in  fact,  exist,  that  being  a  question 
for  the  jurv.     This  is  not  the  case  of  the  withdrawal  qL' 


50  LEADING    CASES    SIMPLIFIED. 

an  authority  which  has  been  once  given  ;  but  the  ques- 
tion is,  whether  the  appelhuits,  who  had  never  before 
dealt  with  either  the  wife  or  the  husband,  were  entitled 
to  assume  that  the  authority  was  implied  from  the 
mere  fact  of  cohabitation,  and  I  do  not  think  that  the 
law  gave  them  any  right  to  do  so." 


CONTRACTS  OF  LUNATICS. 


MITCHELL  V.  KTN^GMAN. 

[5  Pick.  431;  Ewell  on  Dis.  of  Inf.  522.] 

Kingman  was  sued  on  a  promissory  note.  "I  ad- 
mit he  made  the  note,"  said  his  counsel,  when  the  case 
came  to  trial,  "but  if  your  honor  will  allow,  I  will 
show  that  at  the  time  he  signed  it,  and  ever  since,  he 
has  been  an  idiot,  perfectly  incapable  of  understanding 
what  he  was  doing,  and  I  think  that,  under  these  cir- 
cumstances, he  ought  not  to  be  bound."  Then  up 
rose  Mr.  Mitchell's  lawyer.  "  It  seems  to  me,"  he 
replied,  in  a  very  confident  tone,  "that  I  have  read 
in  Blackstone  that  it  is  a  maxim  of  the  common  law 
that  no  man  of  full  age  can  be  allowed  by  his  own 
plea  to  stultify  himself,  and  thereby  avoid  his  own 
deed  or  contract;  and,  if  I  am  not  mistaken.  Lord 
Coke  makes  a  remark  of  a  similar  character."     "  You 


PARTIES.  51 

nre  right,'*  said  the  judge,  '*we  cannot  listen  to  such 
a  i)lea.  Judgment  for  the  phiintiff."  But  on  appeal 
the  Supreme  Court  of  Massachusetts  reversed  the 
case,  saying  that,  though  true  it  was  that  Bhickstone 
and  Coke  had  so  written,  yet  a  more  enlightened 
policy  had  established  a  better  rule,  and  the  law  of 
England  now  was,  and  of  America  had  always  been, 
that  a  lunatic  or  insane  person  might  avoid  his  con- 
tracts by  showing  that  he  was  insane  at  the  time  they 
were  made. 


BAXTER  V.  PORTSMOUTH. 

[7  Dow.  &  Ry.  614;  2  Car.  &  P.  178;  5  Bam.  &  Cress.  170;  Ewell 
on  Dis.  of  Inf.  632.] 

On  various  occasions  between  1818  and  1823  the 
Earl  of  Portsmouth  hired  carriages  and  horses  from 
the  plaintiff,  Mr.  Baxter,  or  Bagster  (there  seems  to  be 
some  difference  as  to  what  his  real  name  was,  but  this 
is  unimportant),  and  thereby  incurred  the  bill  for  which 
this  action  was  brought.  It  was  proved  that  the  plain- 
tiff had  no  reason  to  suppose  the  Earl  to  be  of  unsound 
mind  ;  and  that  the  carriages,  etc.,  were  constantly 
used  by  him,  and  were  suitable  to  his  rank  and  station. 
This  being  so,  the  plaintiff's  claim  was  not  defeated 
by  its  having  been  found,  in  1823,  by  a  commission  that 
the  Earl  "then  was,  and  from  the  1st  of  January, 
1809,  continually  had  been  of  unsound  mind,  not  suf- 
ficient for  the  government  of  himself."  Imposition  or 
fraud,    as  a  rule,   said   the   court,  were   grounds    for 


52  LEADING    CASES    SniPLIFIED. 

vac:itin2:  all  contracts,  and  with  respect  to  a  person  of 
unsound  mind,  if  it  can  be  proved  that  he  has  been 
defnmdcvl,  or  an  undue  advantage  taken  of  his  im- 
bccilitv,  a  court  Avill  not  enforce  his  contracts.  But 
where  there  is  no  imposition  practised,  and  the  goods 
supplied  are  suitable  to  his  condition  and  degree, 
then  the  mere  fact  that  he  is  of  unsound  mind  and  in- 
capal)le  of  making  his  own  contracts  will  not  deprive  a 
person  who  has  given  him  credit  for  such  goods  from 
Buins;  in  a  court  of  law  for  their  value. 


KROM  V.   SCHOOXjVIAKER.^ 

[3  Barb.  647;  Ewcll  on  Dis.  of  Inf.  638.] 

A  crazy  fellow  in  Kochester,  New  York,  who  was  all 
the  more  dangerous  for  the  reason  that  he  was  a  jus- 
tice of  the  peace,  was  possessed  with  the  idea  that  Mr. 
Krom  had  been  committing  wholesale  forgery,  and  so, 
one  fine  morning,  he  thought  it  his  duty  to  issue  a 
warrant  for  Krom's  arrest,  wherefore  the  latter  was 
obru'-ed  to  spend  a  whole  day  in  the  custody  of  a  con- 
stable. When  he  got  out  it  was  not  long  before  there 
was  an  action  for  false  imprisonment  pending  in  the 
courts  against  Mr.  Justice  of  the  Peace,  whose  friends 
seeing  the  fix  he  was  in,  interposed  the  defense  that  he 
was  insane  at  the  time  he  issued  a  warrant.     But  the 


»  This   case  properly  belongs  further  on  in  the   book,  but  is 
placed  bare  for  convenience. 


PARTIES.  53 

*«  insanity  dodge  "  had  no  show  in  this  case.  A  luna- 
tic, the  court  said,  cannot  be  punislied  for  crime,  but, 
all  the  same,  he  may  be  sued  for  an  injury  done  to 
another.  An  idiot  or  other  insane  person  is  not  a  free 
agent,  capable  of  intelligent  voluntary  action,  and, 
therefore,  he  cannot  have  any  guilty  intent,  which  is 
the  very  essence  of  crime.  But  a  civil  action  to  re- 
cover damages  for  an  injury  may  be  maintained  against 
him,  because  in  such  a  case  the  intent  with  which  the 
act  is  done  is  not  material.  It  must  be  borne  in  mind, 
however,  that  the  measure  of  damages  will  generally 
be  less  in  the  case  of  a  lunatic  than  where  a  sane  man 
is  sued  for  an  injury,  for  the  amount  of  damages  is 
generally  increased  by  a  malicious  motive  in  causing 
the  injury. 


CONTRACTS  OF  CORPORATIONS, 


BAXK  OF  COLUMBIA  v.  PATTERSON. 

[7  Cranch,  299.] 

There  was  an  old  doctrine,  that  lingered  in  the  courts 
for  many  ^^ears,  to  the  effect  that  a  corporation  could 
make  no  contract  except  by  its  corporate  seal,  the 
reason  given  being^  as  expressed  by  an  old-time  judge 
that  they  were  "  invisible,  immortal,  and  had  no 
souls,"  and,  therefore,  were  incapable  of  manifesting 


54  LEADING   CASES    SIMPLIFIED. 

their  intention  by  any  personal  or  oral  discourse. 
Corporations  had  a  glorious  time  of  it  on  the  strength 
of  this  ;  they  made  uU  sorts  of  contracts  with  all  sorts 
of  persons,  by  the  word  of  mouth  or  the  simple  signa- 
ture of  one  of  their  officers  or  agents  ;  they  looked  on 
and  saw  the  work  being  done  for  them,  or  the  things 
delivered,  and  then  when  pay-day  came  around,  they 
absolutely  declined  to  fork  over,  and  successfully  shel- 
tered themselves  behind  the  pitiful  defence  that  the 
contracts  of  corporations  are  not  binding  unless  made 
under  their  corporate  seal.  It  is  this  sort  of  thing 
which  has  earned  them  the  title  of  "bloated,"  and 
which  has  at  the  same  time  rendered  them  rather  un- 
po})ular  whenever  they  have  been  forced  to  come  with 
their  disputes  before  a  jury.  But  it  is  a  long  lane 
which  has  no  turning,  and  the  whole  fabric  of  c;)rpor- 
ate  exemption  and  privilege  received  a  tcrril)lo  shock 
in  the  celebrated  case  which  stands  at  the  head  of  this 
paragraph. 

The  facts  of  the  case  were  very  simple.  Mr.  Pat- 
terson was  a  builder ;  the  Bank  of  Columbia  wanted  a 
new  building.  A  committee  of  the  stockholders  and 
Patterson  made  a  contract,  and  he  went  on  and  put  up 
the  building.  But  when  he  asked  for  payment  for  his 
work,  the  Bank  (though  it  had  received  the  consider- 
ation), made  a  grand  effort  to  keep  the  building,  and 
at  the  same  time  not  pay  for  it,  by  saying  :  "AVe  never 
put  our  seal  to  the  contract,  and,  therefore,  you  cannot 
hold  us."  But  this  sort  of  morals  did  not  suit  the 
Supreme  Court  of  the  United  States,  which  court, 
thongli  admitting  that  such  was  the  law  anciently,  pro- 
ceeded by  the  hand  of  Mr.  Justice  Story  to  demolishit 
for   all   time.     "The   technical   doctrine"    said  that 


PARTIES. 


55 


learned  judge,  "  that  a  corporation  could  not  contract 
except  under  its  seal,  or  in  other  words,  could  not 
make  a  promise,  must  have  been  productive  of  great 
mischiefs.  Indeed,  as  soon  as  the  doctrine  was  estab- 
lished that  its  regularly  ai)pointed  agent  could  contract 
in  their  name  without  seal,  it  was  impossible  to  sup- 
port it ;  for  otherwise,  the  party  who  trusted  such  con- 
tract would  be  without  remedy  against  the  corporation. 
Accordingly,  it  would  seem  to  l)e  a  sound  rule  of  law, 
that  wherever  a  corporation  is  acting  within  the  scope 
of  the  legitimate  purposes  of  its  institution,  all  parol 
contracts  made  by  its  authorized  agents  are  exjiress 
promises  of  the  corporation  ;  and  all  duties  imposed 
on  them  by  law,  and  all  benefits  conferred  at  their 
request,  raise  implied  promises  for  the  enforcement  of 
which  an  action  may  w^ell  lie." 


56  LEADING   CASES  SIMPLIFIED. 


TV.  —  The  Statute  of  Frauds. 


[The  independent  layman  who  endeavors  to  make  his  contracts 
without  first  consultini;  his  lawyer,  will  frequently  regret  that  he 
had  not  been  first  instructed  in  the  provisions  of  the  Statute  of 
Frauds.  Long  ago  in  the  reign  of  that  merry  ruler,  Charles  II.,  a 
few  of  the  fathers  of  the  law  in  the  English  Parliament  —  Lord  Hale 
among  them  —  passed  a  statute  which  was  entitled  "An  Act  for  pre- 
vention of  Frauds  and  Perjuryes."  Most  laws  endeavor  to  put  a 
stop  to  the  practices  which  they  are  designed  to  prevent,  by  assess- 
ing penalties  and  punishments  upon  the  refractory  individuals,  who 
forget  or  refuse  to  keep  them.  Not  so  this  law,  which  had  for  its 
object  the  removing  of  some  of  the  temptations  to  fraud  and  per- 
jury, by  preventing  men,  in  the  case  of  a  large  number  of  agree- 
ments, from  swearing  that  they  had  or  had  not  been  entered  into, 
unless  there  was  some  writing  on  the  subject.  Wliere  one  man 
said  that  another  had  promised  to  do  a  certain  thing,  by  word  of 
mouth,  and  the  other  denied  it,  it  is  obvious  that  even  if  one  of 
them  was  not  lying,  such  testimony  was  very  uncertain  and  unsatis- 
factory for  a  judge  to  have  to  decide  upon,  and  so  that  this  kind  of 
swearing  should  be  discouraged,  this  learned  Parliament  passed  the 
celebrated  Statute  of  Frauds  —  an  enactment  which  is  in  force  in 
Great  Britain  to  this  day,  and  whose  provisions  have  been  copied  into 
the  statute  books  of  almost  all,  if  not  all,  the  States  of  the  Union. 
The  original  act  has  sixteen  sections,  the  fourth  and  sixteenth 
being  by  far  the  most  important.  Tiiey  read  thus  (the  preamble 
in  the  quaint  English  of  the  time)  :  "  For  prevention  of  many  fraudu- 
lent Practices  which  are  commonly  endeavored  to  be  upheld  by 
Perjury  and  Subornation  of  Perjury  Bee  it  enacted  that  noe 
Action  shall  be  brought  "  :  — 

Si:CT.  4.  On  any  promise  by  an  executor  or  administrator  to 
answer  damages  out  of  his  own  estate. 

On  any  promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another  person. 

On  any  agreement  made  in  consideration  of  marriage. 


THE  STATUTE  OF  FRAUDS.  57 

On  any  contract  or  sale  of  lands,  tenements,  or  hereditaments,  or 
any  interest  in  or  concerning  them. 

On  any  agreement  not  to  be  performed  within  a  year  from  its 
making. 

Unless  the  agreement  or  some  note  or  memorandum  thereof  shall 
be  in  writing,  signed  by  the  person  to  be  charged  or  his  agent. 

Section  16  enacts  that  no  contract  for  the  sale  of  any  goods, 
wares,  or  merchandise  for  the  price  of  £10  or  more,  shall  be  good 
unless  the  buyer :  — 

(1.)  Accepts  part  of  the  goods  so  sold,  and  actually  receives  the 
same; 

(2.)  Or  gives  something  in  earnest  to  bind  the  bargain,  or  in 
part  payment ;  or 

(3.)  Some  note  or  memorandum  in  writing,  of  the  bargain,  is 
made  and  signed  by  the  party  to  be  charged,  or  his  agent. 

As  was  to  be  expected,  the  courts  were  soon  called  upon  to  inter- 
pret the  different  provisions  of  this  statute.  In  fact  they  have 
kept  at  it  for  two  hundred  years,  and  are  by  no  means  through  yet. 
Indeed,  one  may  say  that  they  have  just  got  a  good  start. 

The  most  important  of  the  "leading  cases"  on  these  important 
statutory  provisions,  are  the  following  ones :  — ] 


PROMISE  TO  ANSWER  FOR  ''DEBT,  DEFAULT, 
OR  MISCARRIAGE"   OF  ANOTHER. 


BIRKMYR    V.   DARNT^LIi. 

[Salk.  27;  1  Smith's  Ld.  Cas.  371.] 

Liglitfinger  wanted  somebody  to  lend  him  a  horse  ; 
but  who  would  lend  Lightfinger  a  horse  ?  He  was  so 
suspicious  a  character  that  everybody  he  applied  to 
remarked  that  he  was  very  sorry,  but  that  just  at  present 
lie  was  not  in  the  livery  business.  At  last  he  got  the 
weak  side  of  one  Darnell,  who  had  no  horses  himself,  but 
knew  some  persons  who  had.     To  one  of  these  persons, 


58  LEADING    CASES    SIMPLIFIED. 

named  Bliktnyr,  Darnell  went,  and,  with  many  expres- 
sions of  conlidence,  undertook  to  bo  responsible  for 
Lighttiiiger's  brinixiiii^  safely  back  any  horse  that  Birk- 
myr  niiirht  intrust  hi  in  with.  On  the  faith  of  this 
undertaking  —  a  verbal  one  of  course  —  Birkniyr  let 
Light  linger  have  one  of  the  best  horses  in  his  stal)le, 
and  that  gentleman  rode  away  ;  and,  as  there  were 
neither  railroads  nor  telegraphs  nor  police  in  1700, 
neither  he  nor  the  horse  was  ever  heard  of  again. 

This  being  the  state  of  the  game,  Birkm}^"  played 
the  only  card  that  was  left  him :  he  sued  Darnell. 
This  card,  however,  did  not  prove  the  trump  he  antici- 
pated. He  found  to  his  cost  that  he  ought  to  have 
taken  DarnelTs  promise  in  writing.  The  Statute  of 
Frauds,  as  we  have  seen,  says  that  a  "  promise  to 
answer  for  the  debt,  default,  or  miscarriage  of  another 
person  "  must  be  in  writing.  Darnell  had  promised 
that  if  Liirht finder  did  not  brins:  back  the  horse, 
Birkmyr  might  look  to  him.  This  was  precisely  the 
kind  of  promise  that  the  statute  referred  to  —  a  promise 
where  some  one  else  is  primarily  liable.  If  John 
Smith  takes  his  friend  Jones  to  his  tailor,  and  says, 
"Make  this  gentleman  a  pair  of  trousers,  and  if  he 
doesn't  pay  you,  1  loill,"  Jones  remains  primarily 
liable,  and  Smith  cannot  be  sued  as  surety  unless  his 
promise  was  i)nt  in  writing.  But  if  Smith  should  say 
to  the  tailor,  "  ]Make  this  gentleman  a  paix'of  trousers, 
and  I ivill pay  you,''  no  writing  would  be  required  to 
make  Smith  liable. 


THE   STATUTE   OF   FRAUDS.  59 

PROMISE  ''IN  CONSIDERATION  OF  MARRIAGE." 


SHORT    V.   STOTTS. 

[58  lud.,  29.] 

Samuel  Short  promised  to  marry  Maggie  Stotts, 
and  when  he  went  back  on  his  word,  Maggie  sued 
him.  Brought  into  court,  Mr.  Samuel,  knowing  that 
his  promises  had  always  been  by  word  of  mouth,  set 
up  the  defence  that  Maggie  could  not  hold  him  on 
his  agreement  until  she  had  produced  some  writing 
of  his  to  that  effect,  relying  on  the  Statute  of  Frauds 
to  help  him  out  of  the  scrape.  But  here  he  did  not 
succeed,  as  the  court  ruled  that  the  statute  applied 
only  to  agreements  "in  consideration  of  marriage," 
and  not  to  agreements  to  marry. 


''INTEREST  IN  OR  CONCERNING  LANDS. 


CROSBY    V.  WADSWORTH. 

[6  East,  602.] 

Farmer  Wadsworth,  of  Claypole,  in  Lincolnshire, 
had  a  field  of  likely-looking  grass,  which  Crosby,  with 
an  eye  to  hay,  desired  to  purchase.     Meeting  casually 


60  LEADING   CASES   SIMPLIFIED. 

one  day  in  June,  it  was  agreed  between  them  that 
Crosby  should  have  the  grass  for  twenty  guinea-^,  only 
he  was  to  have  the  trouble  of  mowing  and  making  it 
into  hay.  On  this  understanding  they  6e[)arated. 
But,  two  or  three  Aveeks  afterwards,  Wadsworth  again 
happened  to  meet  Crosby,  and  remarked  pleasantly : 
''By  the  way,  I've  decided  not  to  let  you  have  that 
grass  of  mine  ;  I  don't  think  yoav  figure  is  good 
enough;"  and  the  same  day  he  sold  it  to  a  Mr. 
Carver  for  twenty-five  guineas,  thus  clearing  a  five- 
pound  note  by  his  diplomacy.  Mr.  Crosb}^  sued 
"Wadsworth  for  his  breach  of  contract,  but,  unfortu- 
nately, took  nothing  by  that,  as  it  was  held  that  the 
contract  was  one  which  had  to  do  with  the  land,  and 
therefore  should  have  been  in  writing,  as  required 
by  the  fourth  section  of  the  Statute  of  Frauds.  "I 
think,"  said  Lord  Ellenborough,  "the  agreement 
stated,  conferring,  as  it  professes  to  do,  an  exclusive 
right  to  the  vesture  of  the  land  during  a  limited  time 
and  for  given  purposes,  is  a  contract  or  sale  of  an 
interest  in,  or  at  least  an  interest  concerning  lands." 


CONTRACTS  ''NOT  TO  BE  PERFORMED  WITHIN 
A  TEAR." 


PETER  V.  COMPTOX. 

[Skin.  353;   1  Smith's  Ld.  Cas.  432.] 

Those    who   knew    him  best  did  not  consider  Mr. 
Peter  a   marrying  man.     Therefore,  it  was   that  Mr. 


THE  STATUTE  OF  FRAUDS.  61 

Comptou  thought  he  had  got  decidedly  on  the  right 
side  of  the  bargain  when,  one  evening,  in  casual  con- 
versation across  the  walnuts  and  wine,  this  asfreement 
was  come  to :  Peter  to  pay  Compton  a  guinea  down, 
in  consideration  that  Compton  would  pay  Peter  a 
thousand  guineas  on  his  (Peter's)  wedding  day. 
Peter  promptly  paid  down  the  guinea,  and  Compton 
pocketed  it  with  a  grin.     Peter  grinned,  too. 

The  next  act  opens  with  Peter's  wedding  day,  two 
years  being  supposed  to  have  elapsed.  Brilliant 
dresses,- lovely  bridesmaids,  rosettes,  church  bells,  and 
indigestible  cake.  But  one  is  conspicuous  l)y  his 
absence.  The  reader  can  guess  who.  When  Mr. 
Peter  led  Mrs.  Peter  away  from  the  hymeneal  altar, 
he  sat  down  and  wrote  an  extremely  friendly  little  note 
to  Compton,  reminding  him  of  that  pleasant  evening 
they  spent  together  two  years  ago,  and  reqnesting  the 
favor  of  a  check  for  amount  due,  as  per  agreement 
Compton  was  considerably  taken  aback ;  but,  like  a 
sensible  man,  went  straight  to  his  lawyer.  That  gen- 
tleman told  him  to  set  his  mind  at  rest ;  for,  said 
he,  in  a  certain  statute,  enacted  of  wise  men  lonoi-  ao-o, 
it  was  provided  that  an  "  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the 
making  thereof"  should  be  in  writing.  '*And  how," 
asked  the  man  of  law,  complacently  stroking  his  chin, 
"can  they  make  out  that  this  agreement  was  to  be 
performed  within  the  year,  when  this  sly  dog  Peter 
doesn't  get  married  till  two  years  afterwards?  Go 
home,  my  dear  sir,  and  don't  trouble  yourself  any 
more  about  it." 

Unfortunately   for  Compton,    this  rather  plausible 
view  of  the  law  was  not  adopted  by  the  judges,  who 


62  LEADING   CASES   SDITLIFIED. 

came  to  the  conclusion  that  the  chuise  in  the  Statute 
of  Frauds  referred  only  to  agreements  which,  in  their 
terms,  vrevQabsoIutelt/  incapable  of  performance  ivithin 
the  year,  and  required  that  such  agreements  only  should 
be  in  writing.  Now,  this  agreement  between  Peter 
and  Compton  was  clearly  not  "  incapable  of  perform- 
ance "  within  the  year,  for  Peter  might  have  got  mar- 
ried the  very  next  day.  So  that  it  was  binding,  though 
not  in  writinsr. 


CONS  IDE  RAT  10  2r  IfUST  BE  EXPRESSED. 


WAIN  V.  WARL.TERS. 

[5  East.,  10;  2  Smith's  Ld.  Cas.  280.] 

For  Mr.  Warlters  the  Statute  of  Frauds  was  decid- 
edly a  fortunate  enactment.  He  had  a  friend  named 
Hall,  who  became  indebted  to  Messrs.  Wain  &  Co.  to 
the  extent  of  £5G,  and  with  no  particular  means  of 
payment.  To  extricate  this  friend  from  his  difficulties 
Warlters  sat  down  and  wrote  out  the  following  collat- 
eral security : 

"  Messrs.  Wain  and  Co.  :  I  will  engage  to  pay  you 

by  half-past  four  this  day  £56  and  expenses  on  bill  that 

amount  on  Hall. 

"  [Signed]     Jonathan  Warlters. 

«'  No.  2,  Cornhill,  April  30,  1803." 


THE  STATUTE  OF  FRAUDS.  63 

Hall,  of  course,  did  not  pay  the  money.  So  Wain 
&  Co.  sued  Warlters  on  his  pruarantee.  But  the  docu- 
ment was  held  to  be  so  much  waste  paper,  as  no  con- 
sideration for  Warltei'S^  promise  to  pay  the  £56  was 
expressed  in  it.  The  Statute  of  Frauds  requires  that 
the  "  agreement"  shall  be  in  writing,  and  as  we  have 
seen,  the  consideration  is  as  much  a  part  of  the  "  agree- 
ment "  as  the  promise. 


PE 03118 E  TO  ANSWER  FOR  DEBT,  ETC.,  OF 
''ANOTHER." 


EASTWOOD  V.   KENYON. 

[11  Ad.  &E.  438.1 

John  Sutcliffe,  beginning  to  feel  that  he  was  not  the 
man  he  used  to  be,  thought  it  was  about  time  to  make 
his  will,  and  turn  his  attention  to  another  and  a  better 
world.  He  left  everything  he  had  in  the  way  of  real 
property  to  his  only  daughter,  and  named  his  friend 
Eastwood  executor.  Bnt  John  Sutcliffe  was  not  des- 
tined to  die  just  yet ;  and  "mansions  in  the  skies" 
were  not  the  only  estates  to  which  he  was  busied  in 
making  his  title  clear.  Before  he  died  he  had  sold  all 
the  lands  mentioned  in  his  will,  and  bought  other 
lands.     Of  those  he  made  no  will  whatever,  and  when 


64  LEADING    CASES    SIMPLIFIED. 

he  tlied,  as  he  did  soon  afterwards,  they  descended  to 
his  child  as  heiress  at  hiw.  This  young  hidy,  at  the 
time  of  her  father's  death,  was  under  age,  and  East- 
wood, on  the  strength  of  the  now  useless  will  (in  those 
days  a  will  did  not  speak  from  the  time  of  the  testator's 
death),  and  the  fact  that  he  was  an  old  and  dear  friend 
of  her  father's,  took  on  himself  to  act  as  her  guardian. 
But  Eastwood,  with  all  his  good  intentions,  was  a  poor 
man  ;  and,  for  the  purpose  of  managing  Miss  Sutclifle's 
affairs,  he  found  it  necessary  to  borrow  money.  He 
borrowed  £140  from  a  person  named  Blackburn,  and 
gave  him  his  promissory  note  for  the  amount.  By 
and  by  Miss  Sutcliffe  did  what  all  young  heiresses, 
sooner  or  later,  must  do  —  she  got  married  ;  the  for- 
tmiate  individual  being  a  Mr.  Kenyon.  Recognizing 
his  claims  to  his  gratitude,  Kenyon  promised  Eastwood 
verbally  that  he  would  pay  Blackburn  the  £140.  But 
somehow  or  other,  when  the  time  came,  small  as  the 
sum  was,  Kenyon  could  not  bring  himself  to  part 
with  the  money ;  and  finally  this  action  had  to  be 
brought  on  his  promise. 

Kenyon  did  not  deny  that  he  had  made  the  promise. 
But  ho  raised  two  objections  to  the  plaintiff's  claim  :  — 
(1.)  That  his  promise  was  one  "  to  answer  for  the 
debt,  default,  or  miscarriage  of  another  person,"  and 
therefore  (by  the  Statute  of  Frauds),  should  have 
been  in  writing. 

This  point  was  overruled,  for  the  judges  said  that 
the  words  in  the  statute  contemplated  the  promise 
being  made  to  the  creditor,  and  had  no  reference  when 
the  promise  was  made,  as  here,  to  the  debtor  himself; 
it  was  a  promise  to  answer  for  the  debt  of  "  another" 
which  was  required  to  be  in  writing. 


THE    STATUTE    OF    FHAUDR.  65 

Beaten  from  this  position,  Kenyon  retreated  to 
another. 

(2.)  That  there  was  no  consideration  for  his  prom- 
ise. 

And  this  point  was  decided  in  his  favor,  for  a  mere 
moral  consideration,  as  we  have  seen,  is  not  strong 
enough  to  snpporfc  a  promise. 

So  Eastwood  was  £140  out  of  pocket  by  his  executor- 
ship. 


"  GOODS,   WARES  AND  MERCHANDISE:' 


TISDALE  V.  HARRIS. 

[20  Pick.  9.] 

The  plaintiff  sued  the  defendant  on  a  verbal  con- 
tract by  whicli  the  latter  agreed  to  sell  him  two  hun- 
dred shares  of  stocli  owned  by  him  in  the  Collins 
Manufacturing  Company.  The  defendant  had  never 
delivered  the  stock,  and  hence  this  suit,  in  which  he 
made  the  defence  that  it  was  a  contract  for  the  sale 
of  "  goods,  wares  and  merchandise,"  and  not  being 
in  writing  he  could  not  be  bound.  The  plaintiff  vigor- 
ously opposed  this  view  of  the  case,  but  the  court  held 
it  was  a  correct  one.  *'  The  court  are  of  opinion," 
said  Chief  Justice  Shaw,  "  that  as  well  by  its  terms  as 
by  its  general  policy,  stocks  are  fairly  within,  its  oper- 


66  LEADING    CASES    SIMPLIFIED. 

ation.  The  words  'goods'  and  'merchandise'  are 
both  of  very  hirge  signification.  Bona  as  used  in  the 
civil  law  is  almost  as  extensive  as  personal  property 
itself,  and  in  many  respects  it  has  nearly  as  large  a 
signitication  in  tlie  common  law.  The  word  '  merchan- 
dise,' also  including  in  general  objects  of  traffic  and 
commerce,  is  broad  enough  to  include  stocks  or  shares 
in  incorporated  companies." 


GOODS  NOT  IN  EXISTENCE. 


LEE  V.  GRIFFES^, 

[1  Best  &  S.  272.] 

Old  Mrs.  Pearson  ordered  two  sets  of  artificial  teeth 
of  Mr.  Lee,  a  dentist.  The  latter  made  them,  but  on 
the  day  before  she  was  to  call  at  the  office  to  have 
them  fitted  the  old  lady  died,  and  as  her  executor  was 
already  supplied  by  nature  with  an  efficient  array  of 
grinders,  the  dentist  was  forced  to  sue  for  his  bill, 
which  amounted  to  $105.  The  executor  set  up  the 
defence,  that  it  was  a  contract  for  the  sale  of  "  goods, 
wares  or  merchandise,"  and  should,  therefore,  have 
been  in  writing,  as  required  by  the  Statute  of  Frauds, 
while  the  dentist  contended  that,  on  the  contrary,  it  was 
work,  labor,  and  materials  for  which  he  was    suino;. 


THE    STATUTE    OF   FRAUDS.  67 

The  executor's  view  was  adopted  hy  the  court,  the 
rule  being  stated  to  be  that,  if  the  contract  be  such 
(haC  when  carried  out  it  ivonld  result  in  the  mle  of  a 
chattel,  it  is  a  sale  of  goods,  and  not  a  contract  for 
work  and  labor. 


VALUE  OF  GOODS. 


BALDEY  v.  PARKER. 

[2  Barn.  &  Cress.  37.] 

Mr.  Parker  has  not  paid  an  exorbitant  price  for  fame. 
He  went  one  day  into  a  shop  and  bargained  for  a 
number  of  trifling  articles,  a  separate  price  being  agreed 
on  for  each,  and  no  one  article  being  priced  so  high  as 
£10.  The  articles  that  Mr.  Parker  had  decided  to 
buy  he  marked  with  a  pencil,  or  assisted  in  cutting 
from  a  larger  bulk.  Then  he  went  home  —  he  always 
did  —  to  tea,  desiring  that  an  account  of  the  whole 
■Bhould  be  sent  after  him.  This  was  done,  and  the 
sum  Parker  was  asked  to  pay  was  £70,  minus  five  per 
cent  discount  for  ready  money.  This  discount  he 
quarrelled  with,  not  considering  it  liberal  enough,  and 
when  the  goods  were  sent  to  him  he  refused  to  accept 
them. 

This  was  an  action  by  the  store-keeper  against  his 
recalcitrant   customer,    and    the    main    question    was 


68  LEADING   CASES   SDIPLTFTED. 

whether  the  contract  was  one  "  for  the  sale  of  goods, 
wares,  or  nicrclumdises  for  the  price  of  £10"  within 
the  17th  section  of  the  Statute  of  Frauds,  the  honest 
store-keeper  saying  that  it  wasn't,  and  the  other  gen- 
tleman saying  that  it  was.  The  question  was  decided 
in  the  affirmative,  the  contract  having  been  an  entire 
one,  and  "it  being  the  intention  of  that  statute,"  as 
HoLROYD,  J,,  said,  "that  where  the  contract,  e?7Ae?' 
at  the  commencement  or  at  the  conclusion,  amounted  to 
or  exceeded  the  value  of  £10,  it  should  not  bind  luiless 
the  requisites  there  mentioned  were  complied  with. 
The  danger,"  he  added,  "  of  false  testimony  is  quite 
as  great  where  the  bargain  is  ultimately  of  the  value  of 
£10  as  if  it  had  been  originally  of  that  amomit," 


ACCEPTANCE  AND  RECEIPT, 


ELMORE  V.  STONE. 

[1  Tann.  458.] 

Elmore  was  a  livery-stable  keeper,  and  had  a  couple 
of  horses  for  sale,  for  which  he  wanted  £200.  Stone 
admired  the  horses,  but  not  the  price.  Finding,  how- 
ever, he  could  not  get  them  for  less,  he  sent  word  he 
would  take  the  horses,  "  but,  as  he  had  neither  ser- 
vant nor  stable,  Mr.  Elmore  must  keep  them  at  livery  for 


THE    STATUTE    OF   FRAUDS.  69. 

him."  In  consequence  of  this  message,  Elmore  re- 
moved the  horses  from  his  sale-stable  into  another  stable, 
which  he  called  his  livery  stable.  In  an  action  which 
he  brought  for  the  price,  the  question  was  whether 
such  removal  was  a  sufficient  constructive  delivery  to 
take  the  case  out  of  the  Statute  of  Frauds,  and  it  was 
held  that  it  was,  as  Elmore  from  that  time  held  the, 
horses,  not  as  owner,  but  as  any  other  livery-stable 
keeper  might  have  done.  Said  Lord  IVIansfield,  who. 
delivered  the  judgment  in  this  case:  <' There  are 
many  cases  of  constructive  delivery.  A  common  case 
is  that  of  goods  at  a  wharf  or  in  a  w^arehouse,  where  the 
usual  practice  is  that  the  key  of  the  warehouse  is  de- 
livered or  a  note  is  given  addressed  to  the  wharfinger, 
who,  in  consequence,  makes  a  new  entry  of  the  goods 
in  the  name  of  the  vendee,  although  no  transfer  of  the 
local  situation,  or  actual  possession,  takes  place.  Thus 
in  the  present  case,  after  the  defendant  had  said  that 
the  horses  must  stand  at  livery,  and  the  plaintitf  had 
accepted  the  order,  it  made  no  ditference  whether  they 
stood  at  livery  at  the  vendor's  stable,  or  whether  they 
had  been  taken  away  and  put  in  some  other  stable. 
The  plaintiff  possessed  them  from  that  time,  not  as 
the  owner  of  the  horses,  but  as  any  other  livery-stable 
keeper  might  have  them  to  keep." 


■J^D'  LEADING    CASES    SniPLrFIED. 

SHLSTDLER  v.  HOUSTON. 

[1  Denlo,  48;  1  N.  Y.  2C1.] 

Houston  owned  a  lot  of  liimljer  which  was  piUvT  on 
a  dock  apart  from  other  linnher  there,  and  had  l^cen 
previously  measured  and  inspected.  Shindler  wanted 
to  buy  some  lumber,  and  this  particular  lot  being  in 
view  of  both,  Shindler  offered  a  certain  price  per  foot 
for  it,  whicli  Houston  accepted,  saylnir,  "  The  lumber 
is  yours."  Shindler  then  told  Houston  to  get  tlie  in- 
spector's bill  and  take  it  to  his  agent  and  he  would  pay 
for  it.  He  did  so,  but  payment  was  refused.  Hous- 
ton then  brought  an  action  for  the  price,  but  was  un- 
successful, the  court  holding  that  there  had  been  no 
sufficient  "acceptance  and  receipt"  of  the  goods  to 
satisfy  the  statute.  It  Avas  not  denied  that  there  might 
be  a  constructive  acceptance  of  goods  as  in  Elmore  v. 
Stone^  but  the  court  thought  that  in  this  case  what 
was  relied  on  as  evidence  of  acceptance  and  receipt 
was  nothing  ])ut  the  acts  and  declarations  of  the  par- 
ties during  the  course  of  the  sale.  There  were  no 
such  subsequent  acts,  as  constituted  the  open  recogni- 
tion of  an  existing  contract;  nothing  in  short  to  show 
that  Houston  considered  that  the  lumber  was  no  longer 
his  property. 


THE    STATUTE    OF   FRAUDS.  71 


CONTRACT    CONTAINED    IN   SEVER^iL    DOCU- 
MENTS. 


BOYDELL   V.  DRU3I3IOXD. 

[11  East,  142.] 

Towards  the  end  of  the  last  century  Boydell  &  Co., 
a  great  pulilishing  lirni  in  London,  determined,  with  a 
view  to  the  encouragement  of  literature  and  their  own 
remuneration,  to  bring  out  a  series  of  engravings  of 
scenes  in  Shakspeare's  plays  ;  and  so  they  issued  a 
prospectus  and  began  A'igorously  canvassing  for  sub- 
scribers. There  were  to  be  seventy-two  engravings 
altogether,  four  of  which  were  to  constitute  a  number, 
and  at  least  one  number  was  to  be  published  every 
year.  "  The  proprietors,  however,  were  confident 
that  they  should  l)e  able  to  produce  two  numbers  in 
the  course  of  every  year."  The  price  of  each  numl^er 
Avas  three  guineas.  The  student,  whose /b?-i'e  is  arith- 
metic, will  thus  perceive  that  the  whole  series  would 
not  be  completed  for  nine  years,  and  that  the  total 
cost  would  be  54  guineas.  Amongst  other  enthusias- 
tic,  if  not  very  appreciative,  admirers  of  the  great  bard 
was  a  Mr.  Drummond.  He  agreed  to  become  a  sub- 
scriber, and  signed  his  name  in  a  book  bearing  the 
title,  "  Shakspeare  Subscribers,  their  Signatures." 
He  even  put  his  admiration  of  the  dramatist  to  tlie 
still  sever  test  of  accepting  and  actually  paying  for  one 
or  two  of  the  numbers.  But  his  interest  soon  l)egan 
to  languish,  and  at   last  it    became  necessary  to    sue 


72  LEADING   CASES   SIMPLIFIED. 

liiiii  (or  not  accepting  the  remainder  of  the  engravings. 
In  defence,  Mr.  Drummond  availed  himself  of  the 
Statute  of  Frauds.  He  said  that  the  agreement  he 
had  entered  into  was  one  which,  by  its  terms,  was  in- 
capable of  performance  within  a  year  from  the  making, 
and,  therefore,  to  bind  him,  should  have  been  writing. 
The  pu])lishcrs  replied  to  this  :  — 

1.  That,  Mr.  Drummond  having  taken  and  paid  for 
several  numbers,  there  was  a  sufficient  "  performance  " 
to  satisfy  the  statute,  if  not  Mr.  Drummond' s  con- 
science. 

2.  That,  after  all,  the  agreement  was  in  writing, 
for  the  book  in  which  Mr.  Drummond  had  signed  his 
name,  coupled  with  the  publishers'  prospectus,  consti- 
tuted a  sufficient  memorandum  of  agreement. 

It  was  held,  however,  —  scarcely  to  the  execution  of 
justice  and  the  maintenance  of  truth  ;  — 

1.  That  part  i^erformance  would  not  do,  for  the 
word  ^  ^  pei'/onnance"  could  not  mean  anything  less 
than  completion. 

2.  That  there  being  no  means  of  connecting  the 
Shakspeare  subscribers'  book  with  the  prospectus, 
without  oral  evidence  —  no  reference  being  made  by 
the  one  to  the  other — they  did  not  together  consti- 
tute a  sufficient  memorandum. 

"If,"  said  Le  Blanc,  J.,  "there  had  been  anything 
in  that  book  which  had  referred  to  the  particular  pros- 
pectus, that  Avould  have  been  sufficient;  if  the  title  to 
the  book  had  been  the  same  with  that  of  the  prospec- 
tus, it  might,  perhaps,  have  done  ;  but  as  the  signa- 
ture now  stands  without  reference  of  any  sort  to  the 
prospectus,  there  was  nothing  to  prevent  the  plaintiff 
from  substituting  any  prospectus,  and   saying  that  it 


THE    STATUTE    OF    FRAUDS.  73 

was  the  prospectus  exhibited  in  his  shop  at  the  time  to 
which  the  signature  rehited  ;  the  case,  therefore,  falls 
directly  within  this  branch  of  the  Statute  of  Frauds." 
So  Boy  dell  beat  the  publishers,  and  lived  happily 
to  the  end  of  his  days ;  and  his  case  remains  the 
leading  authority  for  the  principle  that,  though  a  con- 
tract may  be  collected  from  several  documents,  those 
documents  must  be  so  connected  in  sense  that  oral 
evidence  is  unnecessary  to  show  their  connection  —  in 
other  words,  they  must  be  left  to  speak  for  them- 
selves. It  should  also  be  remembered  by  the  student, 
as  an  illustration  of  the  clause  in  the  fourth  section 
of  the  Statute  of  Frauds,  which  says  that  an  agree- 
ment not  to  be  performed  within  a  year  must  be  in 
writinir.^ 


See  ante,  p.  60. 


74  LEADING   CASES   SIMPLIFIED. 


y .  —  Written  Coi^^teacts  and  Oral 
Evidence. 


OJ^AL   EVIDENCE  NOT  AD^IISSIBLE. 


GOSS    V.  NUGEI«^T. 

[5  Barn.  &.  Adol.  58.] 

Lord  Nugent  agreed  to  buy  of  Mr.  Goss  several  lots 
of  lund  for  £450,  and  paid  a  deposit  of  £80,  Mr.  Goss 
undertaking  to  make  a  good  title  to  all  the  lots.  This 
agreement  was,  as  the  Statute  of  Frauds  requires  it  to 
be,  in  writing.  Soon  afterwards  Mr.  Goss  found  that 
as  to  one  of  the  lots  he  could  not  make  a  good  title  ; 
and  of  course  Lord  Nugent  would  then  have  been 
perfectly  justified  in  crying  off  the  bargain.  Instead 
of  doing  so,  he  agreed  orally  to  waive  the  necessity 
of  a  o-ood  title  being  made  as  to  that  lot.  Afterwards, 
however,  his  lordship  seems  to  have  altered  his  opinion 
as  to  the  desirability  of  becoming  the  owner  of  the 
land,  and  he  declined  to  pay  the  remainder  of  the 
purchase-money,  relying  on  the  objection  to  the  title. 
In  answer  to  that,  Mr.  Goss  wished  to  prove  that  after 
Lord  Nugent  knew  a])ont  the  defect  of  the  title  he 
agreed  to  waive  it.     This,  however,  was  not  alh)wed. 


WRITTEN    CONTRACTS    AND    ORAL    EVIDENCE.  75 

So  Lord  Nugent  recovered  his  deposit,  and  got  the 
better  of  Mr.  Goss.  "  By  the  general  rules  of  the 
common  law,"  said  Denman,  C.  J.,  "  if  there  l)e  a  con- 
tract which  has  been  reduced  into  Avriting,  verbal 
evidence  is  not  allowed  to  be  given  of  what  passed 
between  the  parties,  either  before  the  written  instru- 
ment was  made,  or  during  the  time  it  was  in  a  state 
of  preparation,  so  as  to  add  to,  or  subtract  from,  or  in 
any  manner  to  vary  or  qualify  the  written  contract ;  but 
after  the  agreement  has  been  reduced  into  writing,  it 
is  competent  to  the  parties,  at  any  time  before  breach 
of  it,  by  a  new  contract  not  in  writing,  either  alto- 
gether to  waive,  dissolve,  or  annul  the  former  agree- 
ments, or  in  any  manner  to  add  to,  or  subtract  from, 
or  vary  or  qualify  the  terms  of  it,  and  thus  to  make  a 
new  contract,  which  is  to  be  proved  partly  by  the 
written  agreement  and  partly  by  the  subsequent  verbal 
terms  engrafted  upon  what  will  be  thus  left  of  the 
written  agreement.  And  if  the  present  contract  was 
not  subject  to  the  control  of  any  act  of  Parliament, 
we  think  that  it  would  have  been  competent  for  the 
parties  by  word  of  mouth  to  dispense  with  requiring 
a  good  title  to  be  made  to  the  lot  in  question,  and  that 
the  action  might  be  maintained.  *  *  *  g^t  we 
think  the  object  of  the  Statute  of  Frauds  was  to 
exclude  all  oral  evidence  as  to  contracts  for  the  sale 
of  lands,  and  that  any  contract  which  is  sought  to  be 
enforced  must  be  proved  by  writing  only." 


76  LEADING   CASES   SIMPLIFIED. 

PYi>I    V.   CAMPBELL. 

[G  El.  &  Bl.  370.] 

The  defendants  agreed  to  buy  from  John  Pjm  a  three- 
eighth  part  of  the  benefits  to  accrue  from  an  inven- 
tion of  his.  It  was  agreed  that  this  purchase  was 
only  to  be  made  if  an  engineer  named  Al)ernethie 
approved  of  the  invention.  They  then  made  a  written 
memorandum  of  the  agreement,  without  putting  down 
the  condition  about  Mr.  Abernethie's  approval.  Mr. 
Abernethie  did  not  approve  ;  and  the  question  was, 
whether  the  condition  coukl  be  proved  by  oral  evi- 
dence. In  giving  judgment  that  tlie  evidence  was 
admissible,  Erle,  C.  J.,  said:  "The  point  made  is 
that  this  is  a  written  agreement,  absolute  on  the  face 
of  it,  and  that  evidence  was  admitted  to  show  it  was 
conditional ;  and,  if  that  had  been  so,  it  would  have 
been  wrono*.  But  I  am  of  oiiinion  that  the  evidence 
showed  that  in  fact  there  was  never  any  agreement  at 
g|^_  »  *  *  The  distinction  in  point  of  law  is  that 
evidence  to  vary  the  terms  of  an  agreement  in  Avriting 
is  not  admissible,  but  evidence  to  shoiu  that  there  is  not 
an  agreement  at  all  is  admissible.'^ 


WRITTEN   CONTRACTS   AND   ORAL   EVIDENCE.  77 


LATENT  AMBIGUITY  MAY  BE  EXPLAINED. 


SARGENT  V.  ADAMS. 

[3  Gray,  72.] 

The  defendant  entered  into  a  written  asireement  to 
lease  to  the  plaintiff  the  "Adams  House,"  in  Boston, 
for  a  term  of  ten  years.  The  defendant  had  fitted  up 
an  old  hostelry  called  the  Lamb  Tavern,  as  a  hotel, 
and  had  christened  it  the  "Adams  House."  The  en- 
trance to  the  hotel  was  on  Washington  Street,  and  was 
numbered  371.  The  rest  of  the  ground  floor  of  the 
building  was  fitted  up  for  stores,  which  were  numbered 
1,  2,  3,  4,  and  5  Adams  House.  AVhenthe  time  came 
for  the  defendant  to  i3resent  the  plaintiff  with  the  lease, 
the  latter  discovered  that  it  did  not  include  all  these 
stores,  but  only  one  of  them.  He,  therefore,  refused 
to  accept  it,  and  In'ought  an  action  to  recover  back  a 
sum  of  money  which  he  had  advanced  to  the  defendant 
under  the  agreement.  It  would,  doubtless,  have  been 
hard  for  the  defendant  to  have  shown  that  he  had 
complied  with  his  agreement  had  the  Supreme  Court 
not  allowed  him  to  prove  by  parol  that  the  agreement 
originally  was  that  the  lease  should  include  only  the 
hotel  proper  and  one  of  the  stores.  "The  court  are 
of  opinion,  "  said  the  distinguished  Chief  Justice 
Shaw,  "that  this  constituted  a  case  of  latent  ambig- 
uity, as  that  is  understood  and  explained  in  this 
department  of  the  law.     *     *     *     j^;  fajig  under  that 


78  LEADING   CASES   SIMPLIFIED. 

class  of  cases  where  the  very  general  description 
adopted  in  a  contract  will  apply  to  two  distinct  sub- 
jects, and  so  there  is  a  latent  ambiguity." 


BUT  NOT  "  PATENT  AMBIGUITY.'' 


ASPDEN'S  ESTATE. 

[2  Wall.  jr.  368.] 

Mr.  Mathias  Aspden,  a  wealthy  and  eccentric  Amer- 
ican, died  without  issue,  in  London,  in  the  year  1824. 
There  w  ere  plenty  of  relatives  to  take  care  of  his 
mone\',  and  as  they  could  not  agree  on  the  division,  a 
costly  and  lengthy  litigation  was  the  result.  Matters 
were  somewhat  complicated  by  the  fact  that  Mr.  Asp- 
den left  a  will  in  which  he  devised  his  estate  without 
further  description  to  his  "  heir-at-law."  Everyone 
of  several  nephews  thought  he  exactly  filled  the  bill, 
and  one  of  them  was  particularly  anxious  to  let  the 
court  hear  evidence  that  his  uncle  always  treated  him 
the  best,  and  thought  more  of  him  than  of  the  others, 
in  fact,  considered  him  as  his  heir-at-law.  But  the 
court  held  that  there  was  no  latent  ambiguity  to  ex- 
plain here  ;  if  it  was  anything  it  w'as  a  patent  ambig- 
uity and  parol  evidence  was  not  admissil)le  to  explain 
that  kind.     "  The  difBculty  presented  in   this  will," 


WRITTEN    CONTRACTS   AND    ORAL    EVIDENCE.  79 

said  Mr.  Justice  Grier,  "  is  not  one  arising  upon  a 
latent  ambiguity,  as  where  a  testator  bequeathes  his 
estate  to  his  nephew,  John  Smith,  and  has  two  or  more 
nephews  of  that  name.  On  the  contrary,  the  testator 
has  described  a  certain  person,  or  a  certain  chiss  of 
persons,  as  the  objects  of  his  bounty ;  the  description 
given  cannot  equally  apply  to  two  or  more." 


SUPPLE3IENTAR  Y  CONTRACT  MA  Y  BE  SIIO  WN. 


MAI.PAS  V.  LONDON  &  SOUTHTVESTERX  R.  CO. 

[L.R.  1  C.  P.  336.] 

A  cattle-dealer  wanted  to  send  some  cattle  from 
Guildford  to  Islington.  They  told  him  at  Guildford 
Station  that  the  beasts  Avould  be  duly  forwarded  to 
King's  Cross;  but  they  inveigled  him  into  signing  a 
consignment  note  by  which  the  cattle  were  directed  to 
be  taken  to  the  Nine  Elms  Station,  which  was  not  so 
fiir  as  the  cattle-dealer  expected  them  to  go.  At  this 
intermediate  station  they  remained  and  sutFered  injury 
from  not  being  fed  properly,  etc.  The  company's 
point  was  that  the  consignment  note  was  conclusive 
evidence  of  the  terms  of  the  contract,  and,  therefore, 
that  they  had  never  undertaken  to  carry  further  than 
the  Nine  Elms  Station.     But  for  the  cattle-dealer  it 


80  LEADING   CASES    SIMPLIFIED . 

was  successfully  contended  that  the  consignment  note 
did  not  constitute  a  complete  contract,  and  that  parol 
evidence  could  be  given  of  the  conversation  that  had 
taken  place  between  the  plaintilF  and  the  company's 
servants  before  the  consignment  note  was  signed. 

In  regard  to  the  company's  argument  that  the  writ- 
ten contract  was  conclusive  evidence  that  the  cattle 
were  to  be  carried  to  Nine  Elms  and  no  farther,  Eulk 
C.  J.,  said  :  *'  I  think  that  it  is  not  so,  because  it  seems 
clear  on  the  evidence  that  there  may  have  been  a  con- 
tract to  carry  to  Nine  Elms,  and  an  additional  contract 
to  carry  the  cattle  on  from  thence  to  King's  Cross. 
The  parol  evidence,  therefore,  does  not  vary  or  contra- 
dict the  written  document,  but  only  makes  an  addition 
to  it." 


USAGES  OF  TRADE  MAY  BE  SHOWN. 


COOPER  V.  IvAXE. 

[19  Wend.  38G;  Lawson,  Us.  &  C.  339.] 

A  property  owner  in  the  capital  of  the  State  of  New 
York  emploved  a  contractor  to  grade  a  lot  so  as  to  make 
it  conform  to  a  plan  of  the  streets  established  I)y  the 
city.  The  parties  signed  a  written  agreement,  which 
provided  that  the  contractor  should  excavate  the  lot 
and  make  the  necessarv  embankments  within  a  certain 


WRITTEN    CONTRACTS   AND    OKAL    EVIDENCE.  81 

time,  for  which  the  other,  when  the  work  was  done, 
was  to  pay  him  $180.  As  the  excavating  went  on  the 
contractor  piled  the  sand,  which  was  taken  out,  on  an 
adjoining  lot,  and  as  was  not  strange  (for  when  the 
work  was  finished  the  sand  taken  out  was  worth  at  least 
$150),  both  parties  claimed  it.  "  It  certainly  loas 
mine,"  said  the  owner,  "  and  our  contract  does  not  say 
that  you  are  to  have  $180«u£Zthe  sand  for  your  work." 
But  the  contractor  answered  that  it  had  always  been 
understood  in  Albany  that  the  material  excavated  be- 
longed to  the  excavator,  and  this  was  one  reason  why 
he  had  taken  the  contract  so  low.  In  the  court,  where 
the  parties  at  last  resorted,  the  contractor  offered  to 
give  evidence  of  this  custom,  but  the  judge  would  not 
allow  it  and  gave  the  sand  to  the  owner  of  the  prop- 
erty. But  on  appeal  the  Supreme  Court  thought 
this  all  wrong,  and  ordered  the  court  below  to  permit 
the  contractor  to  show  such  a  usage,  if  he  could.  It 
was  only  fair  to  conclude,  they  said,  that  the  parties 
contracted  with  reference  to  it. 


SOUTIER  V.  KELLER]>IAI^. 

[18  Mo.  509.] 

This  somewhat  novel  case  calls  for  a  little  arithmeti- 
cal calculation,  Mr.  Soutier,  Avho  was  doubtless 
building  a  new  house,  ordered  four  thousand  shingles 
of  a  lumber  dealer,  and  paid  for  them,  too.     In  due 


82  LEADING    CASES    SIMrLIFIED. 

course  of  time  the  dealer's  wagon  came  along,  and 
dumped  eight  large  packages  of  shingles  down  into 
Soulier's  yard.  "  It  strikes  me  that  there  has  l)een 
something  wrong  in  the  count,"  said  Soutier,  when 
he  saw  the  packages,  "  I  guess  I'll  check  them."  He 
went  to  work  and  counted  them  all  over,  when  lo  ! 
there  were  only  two  thousand  five  hundred  shingles  all 
told.  Tlien  he  hied  his  way  to  the  lumber  dealer's.  ■  *'I 
paid  you  for  four  thousand  shingles  and  you  have  sent 
me  only  two  thousand  live  hundred,"  he  vociferated. 
"How  many  bundles  did  you  say  you  received?" 
calmly  returned  the  lumber  man.  "  Eight  bundles," 
answered  Soutier  "but  what  has  that  to  do  with 
it ;  I  paid  you  for  four  thousand  shingles,  not  for  eight 
bundles."  "Ah,"  rejoined  the  dealer,  "but  you 
know  we  never  count  them,  we  put  them  up  in  bun- 
dles of  a  certain  size,  and  we  call  two  bundles  a  thou- 
sand." "And  if  there  are  only  seven  hundred  in  the 
two  bundles  do  you  call  them  a  thousand,  then?" 
asked  Soutier.  "  Oh,  yes,"  responded  the  dealer. 
"If  that's  your  arithmetic,  it  isn't  mine,"  said 
Soutier,  and  he  immediately  brought  suit  for  the  ]5rice 
of  the  one  thousand  five  hundred  shingles  he  had  not 
received. 

As  very  often  happens,  the  first  court  thought  the 
buyer  was  right  and  the  seller  wrong,  while  the 
second  court  thought  just  the  opposite  about  the 
case.  But  unfortunately  for  Soutier,  the  second 
court  was  the  Supreme  Court,  and  so  he  lost  his 
money.  The  Su[)reme  Court  said  that  usage  was 
always  admissible  to  explain  the  meaning  of  a  con- 
tract.    The  court  below  could  never  have  heard  of  the 


WRITTEN    CONTRACTS   AND   ORAL   EVIDENCE.  83 

English  Rabbit  case,'  or  it  never  would  have  made 
such  !i  mistake.  In  that  celebrated  case,  Mr.  Smith 
leased  from  Mr.  Wilson  a  rabbit  warren,  and  cove- 
nanted that  at  the  end  of  the  term  he  would  leave  on 
the  land  at  least  ten  thousand  ral)bits,  Wilson  to  pay 
him  £()()  a  thousand  for  all  he  left.  When  the  lease 
was  up  two  persons  were  appointed  to  count  the  rab- 
bits, and  they  reported  the  number  at  nineteen  thou- 
sand two  hundred.  But  when  Wilson  came  to  settle 
he  wanted  to  pay  for  only  sixteen  thousand  rab])its,  on 
the  ground  that  "  thousand,"  in  that  part  of  the  coun- 
try, when  applied  to  raljbits,  meant  twelve  hundred, 
or  a  hundred  dozen.  Smith  did  not  see  it  that  way, 
and  brought  an  action  for  nineteen  thousand  two  hun- 
dred rabbits,  at  £(10  a  thousand.  But  the  court 
allowed  Wilson  to  show  that  the  custom  of  the  coun- 
ti'y  was  jnst  as  he  had  contended  ;  and  all  the  judges 
of  the  King's  Bench  agreed  that  this  was  correct  law. 
Therefore,  said  the  Supreme  Court  of  Missouri  in 
Souticr  V.  Kellerman,  "  the  usage  of  a  particular  trade 
is  evidence  from  which  the  intention  and  aoreement  of 
parties  may  be  implied  ;  and  although  it  cannot  con- 
trol an  express  contract  made  in  such  terms  as  to  be 
entirely  inconsistent  with  it,  yet  in  express  contracts 
the  terms  employed  may  have  their  true  meaning  and 
force  best  understood  by  reference  to  such  usage. 
Evidence  of  such  usage  is  admitted,  not  to  vary  the 
terms  of  an  express  contract,  or  to  chanije  the  oblisra- 
tioii,  but  to  determine  the  meaning  and  obligation  of 
the  contract  as  made.  The  usage  must  appear  to  be 
so  ireneral  and  well  established  that  kuowledsre  of  it 


'  Sraith  v.  Wilson,  3  Barn.  &  Adol.  728 ;  Lawson,  Us.  &  C.  335. 


84  LEADING   CASES   SlilPLIFIED. 

may  be  presumed  to  exist  among  those  dealing  in  the 
husiness  to  which  it  applies  ;  so  that  the  contract  of 
the    parties   may  be  taken  to    have    been  made    with 
reference  to  it.     In  this  country,  many  articles  which 
are  in  terms  sold  by  the  bushel  (a  dry  measure  con- 
taining -eight  gallons),  are  in  fact  sold  by  weight,  the 
])ushel  being  understood  to  mean  a  certain  number  of 
pounds,  and  the  number  of  pounds  differing  in  differ- 
ent articles  —  as  salt,  wheat,  etc.     When  such  custom 
becomes  general    and   well    established,    so  as  to    be 
known  to  the  community,  it  is  obvious  that  a  contract 
for  a  given  number  of  bushels  must  mean  the  bushel 
as  ascertained  by  weight,  whether,  in  fact,  the  number 
of  pounds  of  the  article  sold  would  measure  more  or 
.less  than  the  real  bushel.     In  the  ]3resent  case  there 
was  evidence  that  a  general  custom  prevailed  in  the 
lumber  trade  of  estimating  two  packs  of  shingles  of 
certain  dimensions  as  a   thousand    shingles,   without 
reference  to  the  number  of  pieces  in  the  pack.     If 
such  was  the  usage  of  the  trade,  so  general  and   well 
established  that  those   buying  and    selling  might   be 
presumed  to  deal  in  reference  to  it,  there  does  not  ap- 
pear to  have  been  any  such  contract  shown  in  this  case 
as  would  prevent  the  usage  from  applying.     The  law 
commissioner  seems  to  have  thought  that  the  defend- 
ant could  not  escape  from  liability,  if  the  contract  was 
at  so  much  per  thousand,  unless  there  was  an  express 
a^^reement  that  two  bundles  should  represent  a  thou- 
sand.     This  was  an  incorrect  statement  of  the  law  in 
a  case  where  evidence  was  given  of  a  general  usage, 
that  a  thousand  shingles  meant  two  packs   of  certain 
dimensions.     Whether  there  was  as  full  evidence  of 
the  usage  given  as  ought  to  have  been  given,  is  not  a 


WRITTEN   CONTRACTS   AND    ORAL   EVIDENCE.  85 

question  ui)oii  which  we  pass  ;  but  there  was  evidence 
of  the  usage,  upon  which  the  party  was  entitled  to 
have  the  hiw  differently  declared,  if  the  evidence 
proved  the  usage  as  general,  well  established  and 
known  so  that  contracts  might  be  presumed  to  be 
made  with  reference  to  it. 


USAGE  MUST  NOT  CONTRADICT  CONTRACT. 


BLACKETT  v.  ROYAL  EXCHANGE  ASS.  CO. 
[2  Cromp.  &  J.  2-t-t;  Lawson,  Us.  &  C.  413.] 

An  insurance  company  made  a  policy,  which  by  its 
terms,  was  expressed  to  be  on  "  the  ship  (that  is  the 
bodv),  tackle,  apparel  ordinance,  munition,  boat  and 
other  furniture  of  the  ship  called  the  Thames  "  from 
London  to  Calcutta.  One  stormy  day  during  the 
voyage,  a  small  boat,  which  was  slung  upon  the  outside 
of  the  sliip,  on  the  quarter,  was  washed  overboard  and 
lost.  The  underwriters  demurred  to  paying  for  this, 
and  when  they  were  sued  wanted  to  show  a  usage  of 
the  trade  that  boats  slung  as  this  one  was,  were  not 
protected  by  marine  policies.  But  this  they  were  not 
permitted  to  do.  The  evidence  did  not  pretend  to  ex- 
plain any  ambiguous  words  in  the  policy,  or  to  intro- 
duce matter  on  which  it  was  silent ;  but  it  was    at 


86  LEADING    CASES    SIMPLIFIED. 

direct  variance  Avith  the  words  of  the  policy,  and  in 
plain  opposition  to  its  language,  for  whereas  the  pol- 
icy imputed  to  be  on  the  ship,  and  furniture,  and  apparel 
generally,  the  usage  olfercd  was  to  say  that  it  was  not 
on  all  the  furniture  and  apparel,  but  upon  only  a  part, 
excluding  the  boat.  "  Usage,"  said  Lord  Lyndhurst, 
in  a  pithy  sentence  since  quoted  by  a  thousand  courts, 
**  Usage  may  l)e  admissible  to  explain  what  is  doubt- 
ful ;  it  is  never  admissible  to  contradict  what  is  plain.'* 


ILLEGAL    CONTRACTS.  87 


YI.  —  Illegal  Contracts. 


CONTRACTS  TO  PREVENT  COMPETITION. 


GULICK  V.   WARD. 

[5  Halst.  87;   18  Am.  Dec.  389.] 

There  were  sccamps  with  eyes  set  on  the  sweets  of 
the  post-office  department,  long  before  the  days  of 
Star  Rontes.  When  James  Monroe  was  President, 
Gulick  and  Ward  were  competitors  for  the  contract  to 
carry  the  mails  between  New  York  and  Philadelphia, 
the  Postmaster-general  having,  under  authority  of  an 
act  of  Congress,  advertised  for  proposals  for  this  ser- 
vice. Gulick  and  Ward  concluded  that  as  both  could 
not  have  it,  there  was  no  use  cutting  each  other's 
throats  in  the  endeavor  to  make  the  lowest  bid,  and  so 
they  made  an  agreement,  which  they  drew  up  and 
sio;ned,  that  if  Gulick  would  withdraw,  and  not  make 
any  offer  nor  induce  any  one  else  to  compete,  and 
Ward  should  get  the  contract,  he  should  pay  Gulick 
$1,000  for  his  magnanimity.  The  long  and  short 
of  it  was,  that  Gulick  withdrew  from  the  compe- 
tition, that  Ward  did  get  the  contract  and  then, 
very  ungenerously  refused  to  hand  over  the  $1,000. 


88  LEADING   CASES    SHIPLIFIED. 

Giilick  sued  liiin,  but  without  success.  The  court 
tokl  him  thtit  courts  of  justice  did  not  sit  for  the 
purpose  of  enforcing  contracts  against  public  policy, 
and  his  contract  with  Ward  was  decidedly  one  of  that 
kidney.  An  arrangement  which  diminishes  the  num- 
ber of  competitors,  lessens  the  number  of  proposals,  or 
induces  anybody  to  abandon  his  intention  of  making 
an  offer,  is  directly  opi)oscd  to  the  policy  of  the  act  of 
Congress  which  calls  for  bids  upon  the  work.  It  de- 
feats the  statute,  for  it  destroys  the  competition  and 
precludes  the  advantages  which  competition  is  in- 
tended to  result  in.  And  Gulick  saw  nothing  of  that 
thousand  dollars,  and  lost  the  contract  into  the  bar- 
gain, as  his  reward  for  making  an  illegal  agreement. 


AGREEMENTS  TO  INFLUENCE  OFFICIALS. 


TOOL.  CO.   V.  NORRIS. 

[2  Wall.  45.] 

About  the  middle  of  1861,  when  the  United  States 
government  was  purchasing  arms  on  an  extensive 
scale,  an  u])iquitous  individual  appeared  at  Washington, 
and  after  lobbying  around  with  great  energy  for  a  few 
weeks,  obtained  a  contract  from  the  Secretary  of  War 
for  twenty-tive  thousand  muskets   of  the  Providence 


ILLEGAL   CONTRACTS.  89 

Tool  Company,  at  twenty  dollars  each.  Norris's  exer- 
tions were  dne  to  the  fact  that  he  had  been  employed 
by  the  tool  company  to  get  this  contract  from  the 
government,  they  agreeing  to  pay  him,  in  the  event 
of  his  snccess,  a  very  handsome  compensation.  But 
when  the  work  was  done  a  dispute  arose  })etween 
Norris  and  the  tool  company  concerning  the  amount 
of  compensation  which  he  should  receive,  and  the  re- 
sult of  it  was  that  he  had  to  bring  an  action  against  the 
company.  The  jury  gave  him  a  verdict  for  $13,500. 
But  on  appeal,  the  Supreme  Court  of  the  United 
States  (after  listening  to  an  able  argument  by  the 
counsel  for  the  defendants),  set  the  verdict  aside,  the 
court  holding  that  Norris  could  recover  nothing  for 
his  services,  on  the  ground  that  all  agreements  for 
compensation  for  procuring  favors  or  contracts  from 
legislative  bodies  or  government  officers  are  against 
public  policy  and  void.^ 


CONTRACTS  UIPEDING  THE  ADMINISTRATION 
OF  JUSTICE. 


COLLTXS  V.  BLAXTERX. 

[2  Wils.  341 ;  1  Smith's  Ld.  Cas.  490.] 

Amonorst  other  misdemeanants  to  be  tried    at   the 


^  If  the  student  is  in  search  of  a  counsel's  argument  to  serve  as 
a  raoclcl  for  himself,  he  will  find  one  in  the  brief  of  the  counsel  for 
the  defendants  in  the  Supreme  Court  as  reported  in  this  case.  It  is 
one  of  the  best  in  the  American  Reports,  its  brevity  being  as  con- 
spicuously noticeable  as  its  learning  and  rhetoric. 


90  LEADING    CASKS    SIMPLIFIED. 

Stafford  Slimmer  Assizes,  1765,  were  five  persons 
chiirgcd  with  i)crjury.  It  happened,  however,  that 
their  prosecutor,  a  Mr.  Rudge,  was  not  of  that  h)fty 
character  which  woukl  prompt  him  scornfully  to  reject 
a  brilxn  The  perjurers  decided  that  he  might  be 
"  got  at,"  and  they  set  to  work  accordingly.  A 
friend  of  theirs,  a  disreputa})le  surgeon  named  Collins, 
was  persuaded  to  pay  Iludge  £350  to  "  square  "  him  ; 
and,  to  indemnify  Collins j  the  perjurers  and  another 
"  pal,"  named  Blantern,  executed  a  bond  for  the  pay- 
ment of  £350.  There  would  scarcely  seem,  however, 
to  flourish  among  perjurers  quite  that  chastity  of 
honor  Avhich  is  ascribed  by  some  people  to  thieves  in 
their  dealings  with  one  another :  for  when  Collins 
hinted  at  the  repayment  of  the  money  he  had  ad- 
vanced he  "Nvas  laughed  at  for  his  pains  ;  and  when  at 
last  he  sued  on  the  bond,  the  perfidious  crew  success- 
fully pleaded  that  the  consideration  for  the  bond  was 
illegal,  and,  although  it  did  not  appear  on  the  face  of  the 
deed,  vitiated  it. 

Said  Lord  Chief  Justice  Wilmot,  in  memorable 
words,  "  You  shall  not  stipulate  for  iniquity.  All 
writers  upon  our  law  agree  in  this  —  no  polluted  hand 
shall  touch  the  pure  fountains  of  justice.  Whoever  is 
a  i)arty  to  an  unlawful  contract,  if  he  hath  once  paid 
the  money  stipulated  to  be  paid  in  pursuance  thereof, 
he  shall  not  have  the  help  of  a  court  to  fetch  it  back 
again  ;  you  shall  not  have  a  right  of  action  when  you 
come  into  a  court  of  justice  in  this  unclean  manner 
to  recover  it  back.     Procul  Olproculesteprofani!'^ 


ILLEGAL   CONTRACTS.  91 

SCOTT    V.  AVERY. 

[5  H.  L.  Cas.  811.] 

This  was  an  action,  by  a  gentleman  whose  good  ship 
had  sone  to  the  bottom,  asTJiinst  a  Newcastle  Insurance 
Association,  of  which  both  plaintiff  and  defendants  were 
members.  The  defendants  relied  on  one  of  the  rules 
of  their  association  (which  the  plaintiff  as  a  member 
had,  of  course,  bound  himself  to  observe),  which  pro- 
vided that  no  member  should  bring  an  action  on  a 
policy  till  certain  persons,  by  way  of  being  arbitrators, 
had  ascertained  the  amount  that  ought  to  be  paid.  In 
answer  to  that  objection,  the  plaintiff  contended  that 
an  agreement  which  ousts  the  superior  courts  of  their 
jurisdiction  is  illegal  and  void,  and  that  the  rule  relied 
on  by  the  defendants  was  of  such  a  nature.  This 
view,  however,  did  not  prevail.  Judgment  was  given 
for  the  defendants  on  the  ground  that  the  contract  did 
not  oust  the  superior  courts  of  their  jurisdiction,  but 
only  rendered  it  a  condition  precedent  to  an  action 
that  the  amount  to  be  recovered  should  be  first  ascer- 
tained by  the  persons  specified.  The  limitation  to  the 
rule  that  all  contracts  obstructing  or  interfering  with 
the  administration  of  the  law  are  illegal  and  void,  was 
concisely  stated  by  Mr.  Justice  Coleridge,  as  follows  : 
"  If  two  parties  enter  into  a  contract,  for  the  breach 
of  which  in  any  particular  an  action  lies,  they  cannot 
make  it  a  binding  term  that  in  such  event  no  action  shall 
be  maintainable,  but  that  the  only  remedy  shall  be  by 
reference  to  arbitration.  *  *  *  The  courts  will  not 
enforce  or  sanction  an  agreement  which  deprives  the 
subject  of  that  recourse  to  their  jurisdiction  which  has 


92  LEADING    CASES    SDirLIFIED. 

been  considered  :i  right  inalienal)lc,  even  by  the  con- 
current will  of  the  parties.  But  nothing  prevents  par- 
ties from  ascertaining  and  constituting,  as  they  pk-asc, 
the  cause  of  action  which  is  to  l^ecome  the  subject- 
matter  of  decision  hy  the  courts.  Covenanting  [)arties 
may  agree  that,  in  case  of  an  alleged  breach,  the  dam- 
ages rendered  shall  be  a  sum  fixed  or  a  sum  to  be 
ascertained  by  A.  B.,  or  hy  arbitrators,  to  be  chosen 
in  such  and  such  a  manner,  and  until  this  be  done  or 
the  nonfeasance  be  satisfactorily  accounted  for,  that  no 
action  shall  bo  maintainable  for  the  breach." 


CONTRACTS  VIOLATING  LAW. 


COWAX  V.  MILBOURX. 

[L.  R.  2Exch.  231.] 

Mr.  Cowan  was,  in  1807,  the  secretary  of  the  Liver- 
pool Secular  Society,  and  the  defendant  the  proprietor 
of  some  assembly-rooms  in  that  town .  Cowan  engaged 
the  rooms  for  a  series  of  lectures  to  show  that  our 
Lord's  character  was  defective,  and  His  teaching  eiTO- 
neous  ;  and  that  the  Bible  was  no  more  inspired  than 
any  other  book.  At  the  time  the  defendant  let  the 
rooms  he  did  not  know  the  nature  of  the  lectures  to  be 
delivered,  and  when  he  found  out,  his  religious  sensi- 
bilities were  shocked,  and  he  declined  to  comj^lote  his 
ao-reement.     The  secularist  now  sued  him  for  In-each 


ILLEGAL    CONTRACTS.  93 

of  contract,  but  the  court  clocided  that  the  purpose  for 
which  the  phiiiitilV  intended  to  use  the  rooms  Avas 
illegal,  and  the  contract,  therefore,  one  which  could  not 
be  enforced  at  law.  "  The  question  is,"  said  Chief 
Baron  Kelly,  "  whether  one  who  has  contracted  to 
let  rooms  for  a  pur[)ose  stated  in  general  terms,  and 
who  afterwards  discovers  that  they  are  to  be  used 
for  the  delivery  of  lectures  in  support  of  a  proposi- 
tion which  states,  with  respect  to  our  Saviour  and 
His  teaching,  that  the  first  is  defective  and  tlie  sec- 
ond misleading,  is  nevertheless  bound  to  permit  his 
rooms  to  be  used  for  that  purpose  in  pursuance  of  that 
general  contract.  There  is  abundant  authority  for 
saying  that  Christianity  is  part  and  parcel  of  the 
law  of  the  land,  and  that  therefore  to  support  and 
maintain  publicly  the  proposition  I  have  above  men- 
tioned is  a  violation  of  the  first  principles  of  the  law, 
and  cannot  be  done  without  blasphemy.  I,  there- 
fore, do  not  hesitate  to  say  that  the  defendant  was 
not  only  entitled,  but  was  called  on  and  bound  by  the 
law,  to  refuse  his  sanction  to  this  use  of  his  rooms." 


CONTRACTS  VIOLATING  STATUTES. 


PATTEE  V.  GREET^EY. 

[13  Mete.  284.] 


Tt  is  enacted  by  statute  in  Massachusetts  that  "  no 
person  shall  do  any  manner  of  labor,  business  or  work, 


94  LEADING    CASES    SIMPLIFIED. 

except  only  works  of  necessity  and  charity  on  the 
Lord's  day."  This  being  the  state  of  the  law,  a 
coni)le  of  bakers  drew  np  an  agreement  which,  after 
reciting  that  one  had  pnrchased  of  the  other  certain 
bread  rontcs,  bonnd  the  other  in  the  sum  of  $500  to 
quit  these  routes,  and  not  thereafter  to  interfere  with 
the  eaters  of  bread  thereon.  To  this  they  set  their 
hands  and  seals,  but  even  this  solemnity  did  not  pre- 
vent the  defendant  from  doing  just  what  he  had  coven- 
anted not  to  do.  Then,  when  he  was  sued  for  the 
$500,  he  was  mean  enough  to  set  np  the  defense  that 
the  l)ond  had  been  executed  and  delivered  on  Sunday. 
And  this  l)cing  proved,  the  court  decided  that  it  could 
not  compel  him  to  pay  it,  the  plaintiff  being  unable  to 
show  that  the  execution  on  Sunday  was  a  work  of 
either  "necessity"  or  "charity."  "Was  its  execu- 
tion," said  Chief  Justice  Shaw,  "  *  any  manner  of 
labor,  business,  or  work,'  within  the  meaning  of  the 
statute?  Certainly  it  was.  The  Legislature  intended 
to  prohibit  secular  business  on  the  Lord's  day,  and  did 
not  confine  the  prohibition  to  manual  labor,  but  ex- 
tended it  to  the  making  of  bargains  and  all  kinds  of 
trafficking.  The  general  principle  that  an  action  will 
not  lie  on  a  contract  made  in  contravention  of  a  stat- 
ute is  well  established." 


ILLEGAL    CONTRACTS.  25 


IMMORAL  CONTRACTS. 


PEARCE  V.  BROOKS. 

[L.  R.  1  Exch.  214.] 

Tlic  plaintiffs  were  coach-builders  and  the  defendant, 
one  of  the  demi-monde ^  had  purchased  a  brougham 
from  them  on  credit,  with  an  agreement  that  she  might 
return  it  before  the  end  of  the  year  on  paying  the 
price  of  its  hire.  She  did  return  it,  but  without  pay- 
ing aiivthiiig,  and  thoy  brought  an  action  for  the  price. 
On  tlic  trial  there  was  evidence  that  one  of  the  part- 
ners knew  that  the  defendant  was  a  prostitute,  but  no 
direct  evidence  that  either  of  them  knew  that  the 
brouirhain  was  intended  to  be  used  by  her  in  her  trade. 
Baron  Bramwell  instructed  the  jury  that  in  one  sense 
everything  which  was  supplied  to  a  prostitute  is  sup- 
plied to  her  to  enal)le  her  to  carry  on  her  trade,  as, 
for  instance,  shoes  sold  to  a  street  walker ;  but  that 
the  things  supplied,  for  which  no  action  can  be  brought 
on  account  of  the  immorality  of  the  contract,  must  be 
not  merely  such  as  would  be  necessary  or  useful  for 
ordinarv  purposes,  and  might  also  be  applied  to  an 
immoral  one,  but  they  must  be  such  as  would  not  be 
required  at  all  except  with  that  view.  The  jury  bring- 
insj  their  knowledge  of  the  world  to  bear  upon  the 
case,  thereupon  found  a  special  verdict  that  the 
brougham  was  used  by  the  defendant  as  part  of  her  dis- 
play to  attract  men,  and  that  the  plaintiffs  knew  it  was 
to  be  used  for  that  purpose,  which  the  judge  thought 


96  LEADING    CASES    SIMPLIFIED. 

was  a  very  proper  one,  as  the  inference  that  a  prostitute 
(who  swore  that  she  could  not  read  writing),  required 
an  ornamental  carriage  for  the  purposes  of  her  calling 
wqAas  natural  a  one  as  that  a  medical  man  would  want 
a  brougham  for  the  purpose  of  visiting  his  jiatients. 
The  defendant  therefore  had  a  verdict  which  was  af- 
firmed on  appeal,  all  the  judges  l)eiiig  of  opinion  that 
any  person  who  contributes  to  the  performance  of  an 
immoral  act  by  supplying  a  thing  with  the  knowledge 
that  it  is  going  to  be  used  for  that  purpose,  cannot  re- 
cover the  price  of  the  thing  so  sui^plied. 


WAGERS. 

GOOD  V.  ELLIOTT. 

[3  Term  Rep.  698.] 

Good,  Elliott  and  Heath  were  discussing  local  mat- 
ters at  the  cross-roads,  when  Good  happened  to  remark 
that  that  new  wagon  of  David  Coleman's  was  a  beauty. 
"  Coleman  hasn't  any  wagon,"  said  Elliott,  "  ho  sold 
it  to  Susannah  Tye  long  ago."  "  Nonsense,"  returned 
Good.  'MVhat  will  you  bet?"  said  Elliott.  "I'll 
bet  you  five  guineas,"  said  Good,  '*  that  Susannah 
Tye  has  not  l)()ught  Coleman's  wagon."  "  I'll  take 
it,"  replied  Elliott.  A  forfeit  was  put  up  in  Heath's 
hands.     On  inquirj^  it  turned  out  that  Elliott  was  mis- 


ILLEGAL    rONtKACtS.  97 

t;ikon,  :ni(l  Ihat  tlio  Avauon  was  still  Coleman's.  But 
he  "Would  not  \)i\y  up,  and  (iood  sued  him.  The  ques- 
tion v/as  -whetlu'r  a  wager  was  reeoveral)le  at  all,  and 
the  court  decided  that  exce[)t  where  they  are  against 
public  })olicy,^  or  are  indecent,''  or  tend  to  injure  the 
feelings  of  third  [)arties,'^  wagers  are  not  illegal ;  l)ut  if 
not  paid,  may  bo  recovered  at  law. 


1  On  this  ground  tht;  following  wagers  have  been  declared  void 
at  common  law :  That  one  of  the  parties  would  not  marry  (because 
contracts  in  restraint  of  marriage  are  void,  seepos^p.  102),  Ilartlcyu. 
Eice,  10  East,  22;  that  a  certain  bird  will  win  a  cock-light  (because 
it  encourages  cruelty),  Brogden  v.  Marriott,  3  Bing.  N.  C.  8S ;  as  to 
the  future  amount  of  the  ht^p  duty  (because  it  might  expose  to  all 
the  world  the  amount  of  the  public  revenue,  and  Parliament  M'as 
the  only  proper  place  for  the  discussion  of  such  matters),  Atherford 
V.  Beard,  2  Term  Rep.  CIO;  as  to  the  duration  of  the  life  of  Napo- 
leon Bonaparte  (because  it  gave  one  party  an  interest  in  keeping  the 
king's  enemy  alive,  and  the  other  an  interest  in  compassing  his  death 
by  unlawful  means),  Gilbert  v.  Sykes,  IG  East,  150;  as  to  whether  a 
prisoner  will  be  convicted  on  a  criminal  charge  (because  it  gives  one 
of  the  parties  an  interest  in  obstructing  or  corrupting  the  fountains  of 
justice),  Evans  u.  Jones,  5  Mee.  &  YV.  77;  as  to  the  result  of  an  elec- 
tion (because  it  gives  each  party  an  interest  in  corrupting  the  vote 
or  falsifying  the  count),  Buuu  v.  Riker,  4  Johns.  420;  s.  c.  4  Am. 
Dec. 292;  Vischer  v.  Yates,  11  Johns.  21 ;  Rust?;.  Gott,  9  Cow.  1C9; 
s.  c.  18  Am.  Dec.  497;  Hill  v.  Kidd,  43  Cal.  (;i5. 

'^  Thus  a  w-ager  as  to  whether  a  certain  person  is  a  man  or  a 
woman,  (Da  Costa  v.  Jones,  2  Cowp.  729),  or  as  to  whether  an  un- 
married woman  will  have  a  child  by  a  certain  day  (Ditchburn  v. 
Goldsmith,  4  Camp.  152),  is  void. 

*  So,  as  said  in  the  principal  case,  a  wager  that  a  young  lady  who 
passes  for  twenty-three  years  of  age  is  really  tlurt3--three,  or  that 
she  squints,  or  has  a  mole  on  her  breast,  would  be  void.  In  a  later 
English  case  A.  and  B.,  two  rival  coach  drivers,  each  bet  the  other 
his  watch  that  Col.  R.  Avould  go  by  his  coach  to  an  entertainment 
that  evening.  On  an  action  being  brought  for  the  stake,  Ab3ott, 
J.,  at  the  beginning  of  the  argument,  said:  "  I  doubt  whether  this 
wager  be  legal.  The  effect  of  it  would  be  to  suliject  a  third  party 
to  great  mconvenience  by  exposing  liiai  to  tlie  importunities  of.  the 


98  LEADING    CASES    SIMPLIFIED. 

The  student  sliould  remember  to  note  another  excep- 
tion, viz.  :  that  the  particular  wager  shall  not  be  pro- 
hibited by  statute.  In  their  grandmotherly  care  for 
the  morals  of  the  citizen,  the  Legislatures  of  most  of 
the  States  have  made  illegal  a  variety  of  wagers,  and 
therefore  such  bets  as  come  within  these  statutes  will 
be  void,  although  valid  enough  at  common  law. 


•CONTBAQTS  IN  RESTRAINT  OF  TRADE. 


ALGER  V.  THACHER. 

[19  rick.  51 ;  31  Am.  Dec.  119.] 

Thacher,  on  selling  Alger  all  his  shares  in  the  Boston 
Iron  Company,  agreed  with  him  that  he  would  not  at 
anv  time  thereafter,  in  his  own  name  or  in  the  name  of 


proprietors  of  those  vehicles;  any  person  who  has  walked  through 
Piccadilly  must  be  sensible  that  this  is  no  small  inconvenience." 
When  the  case  came  to  a  decision  all  the  judges  were  of  the  same 
opinion.  "A  wager  like  the  present,"  said  Lord  Ellenbokough, 
"that  a  gentleman  should  go  by  one  of  these  conveyances  rather 
than  another,  the  decision  of  which 'would  expose  him  to  improper 
importunity  and  interruptions,  and  would  al)ridge  the  exercise  of 
his  riglit  of  electing  his  own  conveyance,  certainly  exposes  him  to 
some  inconvenience.  What  has  been  said  of  the  inconvenience 
subsisting  in  Piccadilly  is  applicable  to  this  case,  and  arises  from 
the  same  circumstances.  This  wager,  then,  being  pregnant  with 
these  consequences  to  other  parties,  seems  to  me  to  be  illegal." 
Eltham  v.  Kingsman,  1  Barn.  &  Aid.  G83. 


ILLEGAL    CONTRACTS.  99 

another,  conduct,  carry  on,  use  or  employ  the  art, 
trade  or  occupation  of  an  iron  founder  or  caster,  or  be 
concGrncd,  interested,  employed  or  engaged,  directly 
or  indirectly,  in  any  manner  whatsoever,  or  under  any 
pretense  whatsoever,  in  the  business  of  founding  or 
casting  of  iron.  Alger  wanted  the  agreement  to  be 
iron-clad,  and  not  content  with  ordinary  writing,  it 
was  executed  with  all  the  formality  of  a  seal.  But 
when  some  years  after  he  came  into  court  to  enforce 
this  contract,  the  judges  very  calmly  told  him  that  it 
was  no  u>ie,  for  this  was  another  of  those  contracts  that 
are  against  public  policy  and  void.  The  agreement 
excluded  Tliacher  everywhere  and  at  all  times  from 
participating  in  the  trade  referred  to.  And  then  the 
court  proceeded  to  point  out  to  Alger  several  reasons 
■why  such  agreements  as  this  w^ere  unreasonable,  and 
could  not  be  listened  to  for  a  moment. 

1.  They  injure  the  parties  making  them,  because 
the}^  diminish  the  means  of  procuring  a  livelihood  and 
a  com[)etency  for  their  families.  They  tempt  improvi- 
dent persons  for  the  sake  of  present  gain  to  deprive 
themselves  of  the  power  to  make  future  acquisitions ; 
and  expose  them  to  imposition  and  oppression.  Long 
ago  in  England,  in  Henry  the  Fifth's  time,  a  poor 
■weaver  was  bewailing  the  loss  of  some  of  his  cloth, 
and  d(H'laring  that  he  would  follow  his  trade  no  longer, 
when  up  comes  a  designing  fellow  who  offers  him  a 
trifling  sum  not  to  weave  any  more.  The  weaver, 
ready  for  anything,  accepts  the  money,  signs  a  bond 
not  to  work  at  his  trade  again,  and  goes  off  to  the 
tavern  to  enjoy  himself.  Next  morning,  forgetting 
all  about  his  agreement  of  the  day  before,  he  gets  out 
his  loom  to  earn  his  dinner.     Mephistophiles,  hearing 


^100  LEADING    CASES    SniPLIFIED. 

the  noiso,  pokes  liis  head  tlironirh  the  windo^v  and 
points  to  the  bond.  The  weaver  tells  him  to  go  to 
H  idos  TTith  his  bond  ;  he  isn't  going  to  starve,  and  ho 
knows  no  other  trade  but  weaving.  Mephistophiles, 
however,  goes  to  court  with  his  ])ond,  with  poor  suc- 
cess as  we  shall  see  below. 

2.  They  deprive  the  public  of  the  services  of  men  in 
the  employments  and  capacities  in  which  they  may  be 
most  usefnl  to  the  community  as  well  as  themselves. 
Dr.  Skilful  and  Dr.  Blunderer  are  surgeons.  The 
former  has  all  the  practice  until  the  latter  pays  him  a 
handsome  annuity  not  to  take  out  his  lancet  again  as 
lonir  as  he  lives.  It  is  obviously  a  good  law  which 
makes  such  an  agreement  null  and  void. 

3,  4,  and  5.  They  discourage  industry  and  enter- 
prise ;  diminish  the  products  of  ingenuity  and  skill, 
prevent  competition,  enhance  prices,  and  expose  the 
public  to  all  the  evils  of  monopoly.  Thus,  if  all  the 
gas  companies  in  the  United  States  were  to  induce 
Mr.  Edison,  by  paying  him  a  couple  of  millions  of 
dollars,  to  promise  under  his  hand  and  seal  that  he 
would  never  invent  or  erect,  or  manufacture  another 
electric  light  in  the  United  States,  the  bond  would  not 
prevent  us  from  having  our  streets  and  houses  lighted 
by  electricity,  invented  and  manufactured  by  ^Mr. 
Edison,  if  he  should  conclude  to  break  his  word,  which 
in  this  instance  it  is  to  be  hoped  he  would. 

And  for  these  reasons  Alger  left  the  court-house 
without  his  money,  a  sadder  and  a  wiser  man.  He 
minht  have  fared  worse  had  he  lived  in  the  time  of  the 
Plantagenets,  for  when  the  judge  to  whom,  by  his 
lawyer,  the  fifteenth-century  Mephistophiles  sent  his 
bond,  read  it  over,  he  flow  into  a  passion,  using  some 


ILLEGAL    CONTRACTS.  101 

very  strong  languauc  in  some  very  strange  French,  to 
the  cftec-t  that,  "  If  the  phiintiff  was  here  he  should  go 
to  prison,  until  he  had  paid  a  good  round  fine  to  the 
king  for  his  pains,  by  God."  ^ 


MITCHEL.   V.  REYNOLDS. 

[*;  p.  Wms.  181 ;  1  Smith's  Ld.  Cas.  508.] 

Leading  eastwards  from  that  sweet  thoroughfare, 
Gray's  Inn  Road,  London,  is,  or  till  quite  recently  was, 
a  street  called  Liquorpond  Street.  In  that  street, 
something  like  two  hundred  years  ago,  there  dwelt  a 
prosperous  baker.  So  prosperous  was  he  that  he 
baked  himself  a  fortune,  and  retired  on  it  into  private 
life.  But  before  retiring  he  sold  his  business  to  the 
plaintifl',  and  executed  a  bond  in  which  he  undertook 
not  to  carry  on  the  business  of  a  baker  in  the  parish  of 
St.  Andrew^  Ilolborn.,  for  Jive  years,  under  a  penalty  of 
£50.  The  baker  did  not  know  his  own  mind.  Retire- 
ment suited  him  little,  and  his  fingers  were  everlastingly 
itching  to  be  in  the  pudding.  The  end  of  it  was  that 
long  before  the  five  years  were  over  he  was  baking 
awav  as  hard  as  ever,  and  in  the  aforesaid  parish,  too. 


^  The  rather  vigorous  judgment  of  Hull,  J.,  in  this  case  is  thus 
reported:  "A  ma  intent  vous  purres  avec  demurre  sur  ky  que 
I'obligation  est  voide  ce  que  le  condition  est  encounter  common 
ley  etper  Dieu  se  le  plaintiff fuU  icy  il  irra  al  prison  tanque  il  ustfait 
fine  au  Eoy.''^ 


102  LEADING    CASES    SOIPLIFIKD. 

Mitchcl  now  sued  the  perfidious  baker  ou  the  bond  to 
recover  the  £50,  and,  what  is  more,  he  did  recover  it. 
Thouirh  a  contract  in  absolute  restraint  of  trade,  is 
not  worth  the  paper  it  is  written  on,  a  contract  in  par- 
tial restraint  of  trade  (that  is  where  tlie  trading  is  not 
to  take  phice  within  a  certain  area)  may  be  irood. 
But  even  here  there  is  another  proviso,  viz.  :  that  the 
restraint  must  l)e  reasonable,  that  is  to  sa}',  it  must  not 
be  greater  tiian  will  ailbrd  a  fair  protection  to  the 
benefited  party.  The  contract  of  our  (Vi(Mid,  the 
baker,  was  very  reasonable  — £10  a  year  for  five3'ear3 
was  a  good  deal  of  money  in  the  seventeenth  century, 
and  five  years  was  not  more  than  an  ordinary  vacation. 
Besides  this,  there  were  other  places  than  tills  little 
parish  where  he  could  knead  and  bake  to  his  heart's 
content,  with  no  fear  of  interference.  And  so  the 
agreement  was  perfectly  legal.  Thus,  and  much  more 
to  the  same  ettect,  spake  the  court  oi  King's  Bench. 


CONTRACTS  IN  RESTRAINT  OF  MARRIAGE. 


LOAVE  V.  PEERS. 

[4  Burr.  2225.] 


In  the  ardor  of  his  affection  and  the  hey-dey  of  his 
youth,  Mr.  Newsham  Peers  was  fool  enough  to  sign, 
seal  and  deliver  a  document  to  this  purport :  — 


ILLEGAL    CONTRACTS.  103 

"  I  do  hereby  [)r()ini.se  Mrs.  Catherine  Lowe  that  I 
will  not  marry  with  any  person  besides  herselC;  if  I 
do,  I  agree  to  pay  to  the  said  Catherine  Lowe  £1,000 
within  tiiree  months  next  after  I  shall  marry  anyone 
else." 

Ten  years  passed  away,  and  then  the  faithless  swain 
married  a  girl  that  was  not  Catherine  Lowe.  The  in- 
jured lady  brougiit  an  action  on  the  document,  l)ut 
after  learned  argument  it  was  resolved  that  it  w^as 
void  as  being  in  restniint  of  marriage.  According  to 
the  view  of  the  judges  —  the  only  sensible  one  —  Mr. 
Peers'  promise  had  not  been  to  marry  M^'s.  Lowe,  as 
might  seem  at  first  sight  to  be  the  case,  but  he  had 
promised  not  to  mamj  anybody  except  Mrs.  Lowe  :  so 
that  if  that  good  widow  from  caprice,  or  otherwise  re- 
fused to  marry  him,  he  would  be  compelled  to  live  all 
his  days  the  celibate  and  cheerless  life  of  a  bachelor. 


MARRIAGE  BROKAOE  CONTRACTS. 


CRAWFORD   V.  RUSSELL. 

[G2  Barb.  92.] 

Jeremiah  Russell  was  a  wealthy  widower  in  Ulster 
County,  New  York.  Christina  Roe  had  her  eyes  on 
the  old  gentleman's  wealth,  and  made  \w  her  mind  to 


104  LEADING    CASES    SIMPLIFIED. 

have  it ;  but  recogiiizinu:  the  adaire  that  two  heads  are 
better  than  one,  she  determined  to  take  her  friend 
Susan  Crawford  into  the  secret.  Susan  thought  the 
idea  a  splendid  one,  but  refused  to  move  a  hand  unless 
she  was  to  share  the  ducats.  "  I  don't  want  the 
money  now,"  said  Susan,  "  but  the  old  man  can't  live 
very  lonir,  and  I  will  wait  for  my  share  till  you  are  a 
rich  young  widow."  So  the  two  women  set  to  work 
to  draw  up  an  agreement  about  the  matter,  and  pres- 
ently they  had  signed  and  sealed  a  contract  in  these 
words  ; 

"  Susan  sh;dl  do  all  she  can  to  aid  a  marriage 
between  Jeremiah  and  Christina  by  her  influence  and 
services,  and  in  consideration  thereof,  Christina  faith- 
fullv  agrees  and  promises  that,  in  case  she  becomes  the 
wife  of  .Jeremiah  and  outlives  him,  she  will  pay  Susan 
for  her  services  in  this  matter  $2,000  in  cash,  and  i)ur- 
chase  for  her  a  piano-forte  and  pay  for  educating  her 
daughter  Kate  and  give  her  a  gold  watch." 

Then  they  laid  siege  to  old  man  Russell's  heart.  Su- 
san certainly  did  her  duty.  She  never  left  off  praising 
the  virtues  of  dear  Christina  when  he  was  around,  she 
invited  him  to  her  house  where  the  young  lady  would 
unexpectedly  drop  in,  she  provided  refreshments  for 
them,  and  when  the  widower  began  to  yield  to  the 
charms  of  the  lovely  Christina,  it  was  Susan  that  had 
to  pay  for  all  the  wood  and  oil  that  was  burned  during 
the  lonjr  winter  eveninixs  that  ho  carried  on  his  court- 
ing  in  the  Crawford  house.  At  last,  in  less  than  a  year, 
the  bait  was  hooked,  and  Christina  became  Mrs.  Jere- 
miah Russell.  Then  as  soon  as  the  Avcdding  feast  was 
ovei-,  Susan  Crawford  began  to  speculate  on  the  date  of 


ILLEGAL    CONTRACTS.  105 

the  funeral.  There  she  miscalculated  very  fur,  for  it 
was  twenty  years  before  Jeremiah  got  ready  for  the 
undertaker,  but  when  he  did  die  Christina  was  a  very 
rich  widow,  and  a  very  mean  one,  for  she  declined  to 
pay  her  old  friend  anything.  Susan  brought  an  ac- 
tion, but  it  was  no  use.  The  court  said  that  this 
was  a  marriage  brokage  contract,  and  void.  True,  the 
civil  law  allowed  match-makers  to  receive  compensa- 
tion ior  their  services,  its  policy  appearing  to  be  that 
all  aid  rendered  in  encouraging  and  establishing  mar- 
riages w^as  for  the  good  of  the  nation  and  productive 
of  public  morality,  inasmuch  as  it  discouraged  forni- 
cation, adultery,  and  concubinage;  but  the  common 
biw  looked  at  the  thing  in  a  different  light.  The  lat- 
ter considered  that  the  effect  of  such  agencies  was  to 
encourage  influences  of  a  pernicious  nature  by  pro- 
moting many  unhappy  marriages,  causing  the  loss  of 
the  influence  of  parents  over  their  children,  holding 
out  false  and  seductive  hopes,  by  the  self-interest  of 
brok;igo  agents  —  these  were  regarded  as  so  corruptive 
in  their  tendency  as  to  be  adjudged  wholly  illegal  and 
void.  So  Susan  got  nothing  for  her  pains,  not  even 
the  monc}^  she  had  laid  out  for  food,  and  light,  and 
fire,  for  the  agreement  being  void,  the  claim  for  these 
fell  wMth  it. 


10 G  LEADING    CASES    SIMPLIFIED. 

COURT  WILL  NOT  AID  EITHER  PARTY. 


HOLMAX  V.  JOHXSOX. 

[Cowp.  341.] 

Mr.  Holmun  was  a  tea  merchant,  doing  business  at 
Dunkirk,  at  wliich  place  he  sold  and  delivered  to  John- 
son quite  a  large  quanlity  of  the  product  of  the  Celes- 
tial Empire.  When  the  time  came  for  him  to  pay  for 
it,  Johnson  neglected  this  little  matter,  and  so  Mr. 
Holman  had  to  go  across  to  England  and  sue  him  for 
the  price.  Here,  Johnson  pleaded  that  the  tea  had 
been  bought  bv  him  to  be  smuirj^led  into  Enirland  ; 
that  Mr.  Ilohnan  knew  it,  and  the  contract  was,  there- 
fore, void.  Mr.  Ilolman's  counsel  replied  th:it  it  was 
not  void,  because  there  was  notliing  illegal  in  the  con- 
tract when  made,  and  he  was  not  responsible  for  what 
rai<2:ht  be  done  with  the  tea  after  it  went  out  of  his 
hands,  and  in  addition  he  argued  that,  even  if  it  was 
illegal,  Johnson  was  as  bad  a  sinner  as  Holman  in  the 
matter,  and  it  "would  be  very  wrong  to  let  him  take 
the  tea  and  the  price,  too,  as  his  share  of  tlie  swag. 

The  court  decided  that  he  was  right  on  the  first  point, 
and  therefore  Johnson  must  pay,  but  that  if  the  con- 
tract had  been  illegal,  Holman  Avould  have  received  no 
aid  from  them.  Lord  Mansfield,  who  delivered  the 
judgment,  laid  down  the  rules  of  law  on  this  question, 
and  the  reasons  on  wdiich  they  are  founded,  with  great 
clearness,  in  the  following  language:  "The  objection 
that  a  contract  is  immoral  or  illegal  as  l)etween  plaintiff 


ILLEGAL    CONTRACTS.  107 

and  defendant,  sounds  at  all  times  very  ill  in  the  month 
of  the  defendant.  It  is  not  for  his  sake,  however,  that 
the  objection  is  ever  allowed,  but  it  is  founded  in  gen- 
eral i)rinciples  of  policy  which  the  defendant  has  the 
advantage  of,  contrary  to  the  real  justice,  as  between 
him  and  the  plaintiff,  by  accident,  if  I  nniy  so  say. 
The  principle  of  pul)lic  policy  is  this  :  ex  doJo  maJo  non 
ojnfur  actio.^  No  court  will  lend  its  aid  to  a  man  who 
founds  his  cause  of  action  upon  an  immoral  or  an 
illegal  act.  If  from  the  plaintiff's  own  stating,  or 
otherwise,  the  cause  of  action  appears  to  arise  ex  turpi 
causa,^  or  the  transgression  of  a  positive  law  of  this 
country,  there  the  court  says  he  has  no  right  to  be 
assisted.  It  is  upon  that  ground  the  court  goes  ;  not 
for  the  sake  of  the  defendant,  but  because  they  will 
not  lend  their  aid  to  such  a  plaintiff.  So  if  the  plain- 
tiff and  defendant  were  to  change  sides,  and  the  de- 
fendant was  to  bring  his  action  against  the  plaintiff, 
the  hitter  would  then  have  the  advantage  of  it,  for 
where  both  are  equally  in  fault,  potior  est  conditio  de- 
fendenfis."  ' 


1  No  cause  of  action  can  grow  ont  of  a  questionable  transaction. 

2  "  From  a  scaly  dealing." 

3  The  one  in  possession  has  the  "  inside  track." 


108  LEADING   CASES    SIMPLIFIED. 


EXCEPT  WHERE  ILLEGAL  PURPOSE  IS  NOT 
COMPLETED. 


SPRIXG  CO.  V.  KNOWLTOX. 

[103  U.  S.  49.] 

The  officers  of  the  Conp:ress  and  Empire  Spring  Com- 
pany, in  New  York,  formed  a  nice  little  scheme  for  the 
benefit  of  themselves  and  other  stockholders,  viz.  :  to 
increase  the  stock  to  the  amount  of  $200,000,  every  old 
stockholder  to  have  a  full-paid  $100  share  for  $80. 
A  paper  was  passed  round  among  them,  to  the  effect 
that  whoever  did  not  pay  the  whole  of  the  $80  when 
called  for  by  the  company,  would  submit  to  forfeiting 
what  he  had  paid.  T'his  was  signed  by  the  stock- 
holders, among  them  being  Mr.  Knowlton,  vice-presi- 
dent of  the  company.  Having  taken  more  of  the  new 
stock  than  ho  could  carry,  Knowlton  was  unable  to 
pay  more  than  twenty  percent  on  it,  and  in  pursuance 
of  the  agreement,  his  payments  were  forfeited.  It  is 
here  important  to  note  tliat  this  wliole  scheme  of  in- 
creasing the  stock  in  this  way  was  in  violation  of  the 
law  of  the  State,  and  therefore  illegal  and  void.  A 
little  while  after,  impressed  either  by  fear  of  the  law, 
or  the  unrighteousness  of  the  affair,  the  compan}'^  con- 
cluded to  abandon  the  whole  thing,  and  refunded  the 
money  which  had  been  paid  for  the  new  stock.  But 
they  made  no  effort  to  pay  the  forfeited  sums,  and  so 
the  executor  of  >.Ir.  Knowlton,  who  had  meantime 
died,  ])roui>;ht  an  action  in  the  Federal  court  to  recover 
his  money  which  had  been  forfeited  in  this  way. 


ILLEGAL   CONTRACTS.  109 

The  company  set  up  the  highly  moral  defence,  that  no 
trilnmal  would  aid  a  party  to  an  illegal  contract  in  get- 
ting his  money  back.  But  the  court  replied  that  every 
judge  sat  for  just  this  thing,  if  it  appeared  tliat  the 
contract  had  not  been  comi)leted  when  the  aid  was 
asked  for.  There  was  always  time  for  repentance  un- 
til the  illegal  affair  was  consummated.  "  It  is  as  old 
as  Comyns,"^  said  Mr.  Justice  Woods,  "  that  where 
money  has  been  paid  upon  an  illegal  contract,  it  is  a 
general  rule  that  if  the  contract  be  executed,  and  both 
parties  are  in  pari  delicto,  neither  of  them  can  recover 
from  the  other  the  money  so  paid  ;  but  if  the  contract 
continues  executory,  and  the  party  paying  the  money 
be  desirous  of  rescinding  it,  he  may  do  so  and  recover 
back,  by  action,  for  money  had  and  received." 
Luckily  for  the  plaintiff,  the  company  had  weakened 
in  its  unlawful  scheme,  and  ho  must  have  his  money. 
And  the  court  gave  judgment  for  the  Ivnowlton  estate 
for  the  sum  asked,  wliich  by  this  time  amounted  to 
something  over  fourteen  thousand  dollars. 


1  Sir  John  Comyns,  Chief  Baron  of  the  Court  of  Exchequer,  who 
about  the  year  1762  wrote  a  digest  of  the  laws  of  England. 


110  LEADING    CASES    SDIPLIFIED. 


YII. — Performance  of  Contracts. 


DISCHARGE  BY  ACT  OF  PROMISEE. 


PECK  V.  UNITED  STATES. 

[102  U.  S.  G5.] 

Mr.  Peck  entered  into  a  contract  with  the  proper 
oflBcers  of  the  United  States  to  furnish  and  deliver  a 
certain  quantity  of  wood  and  hay  at  the  military  sta- 
tion at  Tongue  River  by  a  certain  day.  All  the  par- 
ties intended  that  the  hay  should  be  taken  from  Big 
Meadows  in  the  Yellowstone  Valley,  for  there  was  to 
be  found  the  only  available  grass  for  hundreds  of 
miles.  The  time  for  the  completion  of  the  contract 
approaclied  and  as  Mr.  Peck  seemed  to  be  going  too 
slow,  and  it  was  absolutely  necessary  that  the  station 
should  have  the  hay,  the  government  officers,  fearing 
that  he  would  not  be  able  to  carry  out  his  contract, 
but  not  waiting  till  the  time  for  its  completion  ex- 
pired, allowed  other  i)arties  to  go  into  the  Big  Mead- 
ows and  cut  the  h:iy  for  them.  Of  course,  Mr.  Peck 
could  not  get  the  hay  now,  and  so  failed  to  carry  out 
his  contract.  It  was  held,  however,  in  the  Supreme 
Court  of  the  United  States  that  he  could  not  be  made 


PERFORMANCE  OF  CONTRACTS.         Ill 

to  suffer  for  it,  as  it  was  not  his  fiiult.  The  supply  of 
hay  that  he  had  dcpondod  on  had  been  taken  away  1)y 
the  United  States  through  its  agents.  They  had  hin- 
dered and  jireventcd  him  iVoni  performing  his  part  of 
the  agreement ;  and  it  was  a  sound  principle  of  law 
that  ho  who  prevents  a  thing  being  done  shall  not 
avail  himself  of  the  non-performance  he  has  occa- 
sioned. 


DISCHARGE  BY  ACT  OF  LAW. 


BADLY  V.  DE  CRESPIGNY. 

[L.R.  4  Q.  B.  180.] 

People  do  not,  as  a  rule,  choose  as  eligible  sites  for 
residence  purposes  the  land  adjacent  to  a  railroad 
depot.  For  this  reason,  the  plaintiff  in  this  case  had 
certainly  good  cause  to  complain  of  the  way  he  was 
treated.  He  had  taken  a  lease  of  a  house  and 
grounds  for  eighty-nine  years  from  a  party  with  the 
ornamental  name  of  De  Crespigny,  and  desiring  to  be 
select  in  his  surroundings,  had  taken  a  deed  from  that 
gentleman  in  which  Mr.  De  Crespigny  covenanted  with 
the  phiintift'  "  that  neither  he  (De  Crespigny)  nor  his 
heirs  and  assigns  should  or  would  during  the  term, 
permit  to  be  built  on  the  paddock  fronting  the  prem- 
ises  demised   by   the    deed   towards    the   north,  any 


112  LEADING   CASES    SIMPLIFIED. 

messuage  or  dwelliiig-house,  coach-house  or  stable,  or 
other  erection,  save  and  except  suianaer  or  pleasure 
houses  in  private  garden  ground,  and  also  a  church  or 
chapel  at  the  eastern  extroniiLy  of  the  paddock." 
This  was  in  1840.  Twentj^-five  years  rolled  by  when 
one  day  a  crowd  of  workman  appeared  on  the  scone, 
and  in  a  few  weeks  there  arose  on  the  sacred  paddock 
opposite  the  plaintitT's  residence,  a  building  that  was 
neither  a  summer-house,  church  nor  chapel,  but  on 
the  contrary,  to  quote  the  language  of  the  plaintifT's 
declaration,  "  certain  erections  other  than  those  in  the 
deed  excepted,  to  wit :  a  railway  station  with  the  ap- 
pentenances  thereof,  including  water-closets  and  uri- 
nals." Of  course  this  was  more  than  he  could  stand, 
and  he  immediately  repaired  to  his  lawyer  and  com- 
menced an  action  against  Mr.  De  Crespigny  for  breach 
of  the  covenant  in  the  deed  as  to  erections.  The 
latter  replied  that  Ae  had  not  built  the  railway  station  ; 
it  had  been  built  by  the  London  &  Brighton  Railway, 
which  company  had  compulsorily  purchased  the  pad- 
dock from  him  by  virtue  of  this  somewhat  despotic 
power  given  to  them  by  their  charter.  He  di<l  not 
want  to  })art  with  this  property  in  that  way,  and  was 
as  much  incensed  about  it  as  the  plaintiff,  but  the  law 
compelled  him  and  he  could  not  help  himself.  The 
Court  of  Queen's  Bench,  after  hearing  Mr.  DeCres- 
pigny's  plea,  decided  that  it  was  a  good  defence,  and 
that  the  plaintiff  could  not  recover  anything.  It  was  a 
case  of  an  agreement  rendered  impossible  by  l.iw  and 
for  failure  to  perform  it  there  could  be  no  liability. 
"The  substantial  question,"  said  the  court,  "  is  whether 
the  defendant  is  discharged  from  his  covenant  by  the 
subsequent  act  of  parliament  which  put  it  out  of  his 


PERFOKMANCF.    OF   CONTRACTS.  113 

pov;er  to  do  so.  We  are  of  opinion  that  he  is  so  dis- 
charged, on  the  principle  expressed  in  the  maxim,  lex 
non  coget  ad  impossibilia.^'  ^ 


IMPOSSIBILITY  OF  PERFORMANCE. 


TAYLOR  V.  CALDWELL,. 

[3  Best  &  S.  82G.] 

In  1861,  Mr.  Caldwell  agreed  to  let  Mr.  Taylor  have 
the  Surrey  Gardens  and  Music  Hall  for  four  specified 
summer  nights,  on  wliich  JNIr.  Taylor  proposed  to  en- 
tertain the  British  public  with  bands,  ballets,  acquatic 
sports,  fire-works,  and  other  festivities.  Unfortun- 
ately, before  these  summer  nights  arrived,  Mr.  Cald- 
well's premises  were  destroj'ed  by  an  accidental  fire. 
Mr.  Taylor  had  been  put  to  great  expense  in  preparing 
for  his  entertainment,  and  he  submitted  that,  as  the 
contract  was  an  absolute  one,  Mr.  Caldwell  must  pay 
damages  for  the  breach.  It  was  held,  however,  that 
the  parties  must  be  taken  to  have  contracted  on  the 
basis  of  the  continued  existence  of  the  premises,  and, 
as  they  had  been  burnt  down  without  the  fault  of  either 
party,  both  parties  were  excused. 

The  law  applicable  to  such  cases  was  thus  summed 
up  by  Blackburn,  J.  :  "  There  seems  to  be  no  doubt 
that  where  there  is   a  positive  contract  to  do  a  thing 


i  The  law  does  not  compel  a  man  to  perform  Impossibilities. 


114  LEADING    CASES    SIMPLIFIED. 

not  in  itself  unlawful,  the  contractor  must  perform  it 
or  pay  damages  for  not  doing  it,  although  in  conse- 
quence of  unforeseen  accidents,  the  performance  of  his 
contract  has  become  unexpectedly  burtliensome,  or 
even  impossible.  But  this  rule  is  only  applicable 
where  the  contract  is  positive  and  absolute,  and  not 
subject  to  any  condition,  either  express  or  implied; 
and  there  are  authorities  which  establish  the  principle 
that  where,  from  the  nature  of  the  contract,  it  appears 
that  the  parties  must  from  the  beginning  have  known 
that  it  could  not  be  fulfilled,  unless  when  the  time  for 
the  fulfilment  of  the  contract  arrived,  some  particular 
specified  thing  continued  to  exist,  so  that,  when  en- 
tering into  the  contract,  they  must  have  contemplated 
such  continuing  existence  as  the  foundation  of  what 
was  to  be  done,  there  in  the  absence  of  any  express  or 
implied  warranty  that  the  thing  shall  exist,  the  con- 
tract is  not  to  be  construed  as  a  positive  contract,  but 
as  subject  to  an  implied  condition  that  the  parties  shall 
be  excused,  in  case,  before  breach,  performance  becomes 
impossible,  from  the  perishing  of  the  thing  without 
default  of  the  contractor." 


IMPOSSIBILITY  BT  ACT  OF  GOD. 


ROBINSON  V.  DAVISON. 

[L.  R.  6  Exch.  2G9.] 

An  eminent  pianist,   known  professionally  as  Miss 
Arabella  Goddard,  was  the  wife  of  the  defendant  in 


PERFORMANCE  OF  CONTRACTS.         115 

this  case,  Mr.  Davison.  Mr.  Robinson,  whose  busi- 
ness was  that  of  a  concert  manager,  made  a  contract 
with  Mr.  Davison  that  his  wife  should  perform  at  a 
concert  on  the  night  of  the  14th  of  January,  1871, 
for  a  certain  sum  of  money.  The  former  got  every- 
thing ready  for  the  performance,  but  on  the  morning 
of  the  14th,  mstead  of  Mrs.  Davison,  there  came  a 
hotter  from  her,  saying  that  she  was  too  ill  to  attend 
the  concert,  and  inclosing  a  medical  certificate  to  that 
effect.  This  did  not  suit  Mr,  Robinson  at  all,  and  so 
he  brought  an  action  for  the  breach  of  the  contract. 
But  all  the  court  held  that  the  sickness,  if  real,  was  a 
good  excuse.  "  This  is  a  contract,"  said  Baron  Bram- 
WELL,  "to  perform  a  service  which  no  deputy  could 
perform,  and  which,  in  case  of  death,  could  not  be 
performed  by  the  executors  of  the  deceased ;  and  I 
am  of  opinion  that,  by  virtue  of  the  terms  of  the 
original  bargain,  incapacity  either  of  body,  or  mind, 
in  the  performer,  without  default  on  his  or  her  part,  is 
an  excuse  for  non-performance.  Of  course,  the  par- 
ties might  expressly  contract  that  incapacity  should 
not  excuse,  and  thus  preclude  the  condition  of  health 
from  being  annexed  to  their  agreement.  Here  they 
have  not  done  so,  and  as  they  have  been  silent  on  that 
point,  the  contract  must,  in  my  judgment,  be  taken  to 
have  been  conditional,  and  not  absolute."  Baron 
Cleasby  was  of  the  same  opinion.  Said  he:  "This 
is  a  contract  that  a  lady  should  perform  as  a  pianist ; 
that  is,  should  undertake  a  duty  requiring  a  high 
degree  of  skill  and  taste,  and  one  which,  if  not  per- 
formed properly,  can  hardly  be  said  to  have  been  per- 
formed at  all.  It  is,  moreover,  a  duty  which  could 
not  be  done  by  a  deputy,  but  only  by  the  lady  herself, 


116  LEADING   CASES    SIMPLIFIED. 

and  that  being  so,  I  think  that  {lisa})ility  or  incapacity 
caused  by  the  act  of  God  excuses  the  defendant.  The 
■whole  contract  between  the  parties  was  based  upon  the 
assumption  by  both  that  the  performer  would  continue 
living  and  in  sufficient  health  to  play  on  the  day 
named.  This  was  really  the  very  foundation  of  the 
promise,  and  when  the  foundation  fails  the  promise 
built  on  it  must  fail  also." 


DEWEY  V.  UNIOX  SCHOOL.  DISTRICT. 

[43  Mich.  480.] 

The  school  directors  of  a  town  in  Michigan  hired  a 
teacher  for  ten  months  at  a  salary  of  $130  a  month. 
He  had  no  more  than  entered  on  his  duties,  before  the 
small-pox  broke  out  in  the  neighborhood,  and  raged  to 
such  a  great  extent  that  the  directors  did  the  only 
proper  thing  under  such  circumstances — they  closed 
the  school  until  the  epidemic  had  abated,  which  was 
something  like  three  months.  At  the  end  of  that 
time  the  school  was  re-opened.  The  schoolmaster  went 
back  to  his  work,  and  also  presented  a  little  bill  to  the 
board,  for  the  amount  of  his  salary  during  his  enforced 
vacation.  But  the  directors  replied  (there  was  most 
likely  a  lawyer  on  the  board) :  "  The  act  of  God  made 
it  impossible  for  us  to  keep  the  school  open,  and  the 
law  l)ooks  say  that  the  act  of  God  will  excuse  the  fail- 
ure to  carry  out  a  contract."     The  schoolmaster  said 


PERFORMANCE  OF  CONTRACTS.         117 

he  would  see  about  that,  and  straiirhtway  sued  the 
directors.  The  defendant's  haw,  the  court  said,  was 
sound,  but,  for  ministers  of  public  instruction,  their  mis- 
use of  words  was  horrible.  It  was  not  "  impossible  " 
to  keep  the  school  open  at  such  a  time  ;  it  was  simply 
"  dangerous."  The  act  was  not  one  of  absolute  neces- 
sity, but  of  strong  expediency.  Therefore,  they  did 
not  conic  within  their  own  definition,  and  the  school- 
master must  have  his  money. 


BENUNCIATION  BEFORE  PERFORMANCE  DUE 
GIVES  RIGHT  TO  SUE. 


HOCHSTEK  V.   DE  LA  TOUR. 

[2  El.  &  Bl.  678.] 

Mr.  Do  La  Tour,  meditating  a  tour  on  the  continent, 
engaged  Ilochster  as  his  courier  at  £10  a  month,  the 
service  to  coumience  on  June  1st.  Before  that  day 
came,  however,  Mr.  De  La  Tour  altered  his  mind,  and 
told  Ilochster  he  should  not  want  hiiu.  Without 
wasting  words  or  letting  the  grass  grow  under  his  feet, 
and  before  June  l.st,  Hochster  issued  his  writ  in  an 
action  for  breach  of  contract.  For  De  La  Tour  it  was 
argued  that  Hochster  should  have  waited  till  June  1st 
before  bringing  his  action,  for  that  the  contract  could 
not  be  considered  to  be  broken  till  then.     It  was  held, 


118  LEADING    CASES    SIMPLIFIED. 

however,  that  the  contract  had  l)ceii  siithcicntly  broken 
by  De  La  Tour's  saying  dehnitely  that  he  renounced 
the  agreement.  "  "Where  there  is  a  contract,"  said 
the  court,  "  to  do  an  act  on  a  future  day,  there  is  a 
rehition  constituted  between  the  parties  in  the  mean- 
time by  the  contract,  and  they  impliedly  promise  that  in 
the  meantime  neither  will  do  anything  to  the  prejudice 
of  the  other  inconsistent  with  that  relation.  As  an  ex- 
ample, a  man  and  a  woman  engaged  to  marry,  are  affi- 
anced to  one  another  during  the  period  between  the  time 
of  the  engagement  and  the  celebration  of  the  marriage. 
In  this  very  case  of  traveller  and  courier,  from  the  day 
of  hiring  to  the  day  the  employment  was  to  begin,  they 
were  engaged  to  each  other ;  and  it  seems  to  be  a 
breach  of  an  implied  contract  if  either  of  them  re- 
nounces his  engagement." 


FROST  V.  ICSTGHT. 

[L.  R.  7  Exch.  lU.] 


Mr.  Knight  promised  his  sweetheart  that,  though  ho 
could  not  marry  her  at  once,  he  would  do  so  the 
moment  his  father  died.  Soon  after  he  repented  of 
his  promise,  and  in  the  lifetime  of  his  father,  told  her 
frankly  that  he  took  back  what  he  had  said,  and 
would  never  marry  her.  Instantly,  without  waiting 
for  the  old  gentleman's  death,  she  went  to  law  and 
recovered,  too.     "The  promisee,"  said  Chief  Justice 


PERFORMANCK  OF  CONTRACTS.  119 

CocKBUUN,  "  liiis  un  inchoate  right  to  the  performance 
of  the  bargain,  which  becomes  corai)lete  when  the 
time  for  peiforniance  arrives.  In  the  meantime  he 
has  a  right  to  have  the  contract  kept  open  as  a  sub- 
sisting and  effective  contract.  Its  unimpaired  and  un- 
impeached  efficacy  may  be  essential  to  his  interests." 


CONSTRUCTION  OF  CONTRACTS. 


ROE  V.   TRAX3IAR. 

[Willes  G32;  2  Smith's  Ld.  Cas.  4-44.] 

A  deed  bade  fair  to  become  void  altogether  as  pur- 
porting to  grant  a  freehold  in  futuro  —  a  thing  which 
the  law  does  not  aHow.  It  was  saved,  however,  from 
this  untimely  fate  by  the  merciful  construction  that, 
though  void  as  what  it  purported  to  be,  it  might  yet 
avail  as  a  covenant  to  stand  seised,  the  court  citing 
the  maxim,  henigne  faciendcB  sunt  interpretationes 
chartarum,  lit  res  magis  valeat  quam  pereat,  which 
means  that  instruments  ought  to  l)e  construed  leniently 
with  all  allowances  for  the  ignorance  of  people  who  are 
not  lawvers,  in  order  that,  if  possible,  the  transaction 
may  be  supported. 


120  LEADING   CASES    SIMPLiriED. 

BREACH  OF  PROMISE  OF  MARRIAGE. 


WRIGHT3IAN  V.   COATES. 

[15  Mass.  1 ;  8  Am.  Dec.  77.] 

Miss  Maria  Wriglitmau  complained  that  Joshua 
Coatos  had  broken  his  promise  to  make  her  Mrs.  Coates, 
and  had  married  somebody  else.  For  tliis  she  asked 
damajres  in  a  Massachusetts  court.  There  was  no  ex- 
press  promise  on  Joshua's  part,  but  there  were  a  num- 
ber of  nice  letters,  which  she  produced  in  court,  all 
written  by  him,  in  which  he  called  her  his  dear  Maria, 
and  besides,  had  he  not  taken  her  to  singing-school  for 
two  years,  and  always  spent  at  least  two  other 
evenings  a  week  in  her  company?  Joshua's  lawyer, 
however,  was  not  satisfied.  In  the  first  place  he  object- 
ed that  actions  of  this  kind  ought  to  be  discouraged  by 
the  courts,  who  should  refuse  to  listen  to  complaints 
of  this  character,  and  this  objection  being  overruled 
(for  said  the  court,  "We  can  conceive  of  no  more 
suitable  ground  of  application  to  the  tribunals  of  jus- 
tice for  compensation,  than  that  of  a  violated  promise 
to  enter  into  a  contract  on  the  faithful  performance  of 
which  the  interest  of  all  civilized  countries  so  essen- 
tially depends  "),  he  fell  back  on  the  further  objection 
that,  as  Maria  had  not  shown  an  express  promise  by 
Joshua,  she  could  not  succeed.  But  here  he  was  over- 
ruled again.  "  That  young  people  of  different  sexes," 
said  Chief  Justice  Parker,  "  instead  of  having  their 
mutual  eno-agement  inferred  from  a  course  of  devoted 


PERFORMANCE  OF  CONTRACTS.         121 

attention,  and  apparently  exclusive  attachment,  which 
is  now  the  common  evidence,  should  be  obliged,  l)cfore 
they  considered  themselves  bound,  to  cull  witnesses 
or  execute  instruments  under  hand  and  seal,  would  be 
destructive  of  that  chaste  and  modest  intercourse 
which  is  the  pride  of  our  country,  and  a  boldness  of 
manners  would  probably  succeed,  by  no  means  friendly 
to  the  character  of  the  sex  or  the  interests  of  society." 


ATCHINSOX  V.   BAKER. 

[Peak.  Ad.  Cas.  103.] 

Mrs.  Baker  was  a  rich  widow  ;  fair,  fat,  forty,  and 
in  every  way  calculated  to  crown  the  felicity  of  a  man 
of  moderate  tastes.  She  yielded  to  the  persuasions  of 
Mr.  Atchinson,  a  widower  of  the  same  age,  and  prom- 
ised to  marry  him.  At  the  time  of  the  promise,  Mr. 
Atchinson  had  all  the  appearance  of  being,  and  no 
doubt  was,  a  sound,  healthy,  capable  man,  and  the 
widow  congratulated  herself  on  her  approaching  nup- 
tial bliss.  But  before  the  happy  day  came,  she  was 
disgusted  to  find- — ^  so  she  said — that  her  lover  had 
an  abscess  on  his  breast ;  and  immediately  the  fever 
left  her.  She  vowed  she  would  never  link  herself  to  a 
putrid  mass  of  corrupting  humanity.  Mr.  Atchinson 
brought  an  action  for  breach  of  promise,  and  the  trial 
elicited  some  valuable  remarks  from  Lord  Kenyon  : 
"  If  the  condition  of  the  parties  is  changed  after  the 


122  LEADING   CASES   SIMPLIFIED. 

time  of  making  the  contract,  it  is  a  good  cause  for 
either  party  to  break  off  the  connection.  Lord  Mans- 
field has  hekl  that  if,  after  a  man  has  made  a  coiilraet 
of  marriage,  the  woman's  character  turns  out  to  be 
different  from  what  ho  had  reason  to  think  it  was,  he 
may  refuse  to  marry  her  Avitliout  being  liable  to  an  ac- 
tion, and  whether  the  intirmity  is  bodily  or  mental, 
the  reason  is  the  same  ;  it  would  be  most  mischievous 
to  compel  parties  to  marry  who  can  never  live  happily 
together." 


WTLLARD  V.   STONE. 

[7  Cow.  22;  17  Am.  Dec.  496,] 


Miss  Willard  had  the  same  kind  of  trouble  with  Mr. 
Stone  that  Maria  "SVrightman  had  with  Joshua  Coates. 
When  she  got  him  into  court  he  did  not  deny  that  he 
had  promised  to  marry  her ;  but,  said  he,  "When  I 
got  back  from  a  journey  out  West,  everybody  said  that 
a  fellow  by  the  name  of  Frink  had  cut  me  out  Avhile  I 
was  away,  and  this  was  the  reason  I  broke  off  the  en- 
gagement." "  We  cannot  listen  to  evidence  like  that," 
the  court  replied,  "  for  Miss  Willard  was  not  respon- 
sible for  whatever  Dame  Eumor  might  say."  "  But 
ought  I  not  to  be  allowed  to  prove  that  after  our  engage- 
ment was  l)r()kon  off  she  used  to  take  long  walks  at  night 
with  Frink,  and  was  often  guilty  of  very  gross  and 
indecent  familiarities  with  him."  '*  Certainly,"  said 
the  court,  ♦*  evidence  of  what  kind  of  a  character  the 


PERFORMANCE   OF   CONTRACTS.  123 

female  complaining  is,  is  always  admissible  in  actions 
of  this  kind.  The  o])jcct  of  these  actions  is  not  merely 
a  compensation  for  the  immediate  injury  received,  but 
damages  for  loss  of  reputation.  This,  of  course,  must 
depend  on  her  general  character  both  before  and  after 
the  breach  of  promise."  And  Miss  Willard,  on  account 
of  these  little  indiscretions,  lost  her  case. 


AN  ENTIRE  CONTRACT  CANNOT    BE    APPOR- 
TIONED. 


CUTTER  V.  POWELL.. 

[6  Term  Rep.  320;  2  Smith's  Ld.  Cas.  18.] 

The  defendant  had  a  ship  which  was  about  to  sail 
from  Jamaica  to  England,  and  wanted  a  second-mate. 
In  answer  to  an  advertisement  a  suitable  person  pre- 
sented himself  in  the  shape  of  Mr.  T.  Cutter,  and  the 
defendant  jjave  him  a  note  to  this  effect :  — 

*'  Ten  days  after  the  ship,  Governor  Parry,  myself 
master,  arrives  at  Liverpool  I  promise  to  pay  to  Mr. 
T.  Cutter  the  sum  of  30  guineas,  provided  he  proceeds, 
continues,  and  does  his  duty  as  second-mate  in  the  said 
ship  from  hence  to  the  port  of  Liverpool." 

The  ship  set  sail  on  July  31st,  and  arrived  at  Liver- 
pool on  October  11th.     But   life  is   very  uncertain; 


124  LEADING   CASES   SIMPLIFIED. 

and  on  the  voyage  Mr.  T.  Cutter  exchanged  the  bil- 
lows of  time  for  the  haven  of  eternity.  He  had  gone 
on  board  on  July  31st,  and  had  performed  his  duty 
faithfully  and  well  up  to  the  time  of  his  death,  which 
occurred  on  September  20th, — that  is  to  say,  when 
more  than  two-thirds  of  the  passage  were  accom- 
plished. 

If  on  these  facts  the  unsophisticated  but  thoughtful 
student  were  asked  whether  Mr.  T.  Cutter's  family 
would  be  entitled  to  see  anything  of  the  30   guineas, 
the  probabilities  are  that  he  would  reply,  "  Certainly ; 
they  might  not  be  able  to  get  the  whole  30  guineas, 
but  I  suppose  they  would  get  something  for  the  man's 
service  from  July  31st  to  the  time  of  his  death."     In 
this  opinion  the  unsophisticated  but   thoughtful  stu- 
dent would  be  wrong.     ''In  this  case,"   said  one  of 
the  judges,  "  the  agreement  is  conclusive  ;  the  defen- 
dant only  engaged  to  pay  the  intestate  on  condition  of 
his  continuing  to    do   his  duty    on  board  during    the 
whole  voyage,  and  the  latter  was  to  be  entitled  either 
to  30  guineas  or  nothing  ;  for  such  was  the  agreement 
between  the  parties."     Said  another  of  the  judges: 
<'  This  is  a  written  contract  and  it  speaks  for  itself. 
And  as  it  is  entire,  and  as  the  defendant's  promise  de- 
pends on  a  condition  precedent  to  be  performed  by  the 
other  party,  the  condition  must  be  performed  before 
the  o'lher  party  is  entitled  to  receive  anything  under 
it."^ 


1  The  courts  at  the  present  day  seem  to  regard  the  rule  in 
Cutter  V.  Powell  as  a  hard  one,  and  rather  favor  permitting  the 
party  who  has  not  wholly  completed  the  entire  contract  to  recover 
for  what  he  has  done  (especially  where  the  other  party  retains  the 
benefit) ,  less  the  damage  sustained  by  the  latter  by  reason  of  the 


PERFORMANCE  OF  CONTRACTS.         125 


MEASURE  OF  DAMAGES  ON  BREACH  OF 
CONTRACT. 


HADLEY  V.   BAXEXr>AJLE. 

[9Exch.  341.] 

Hadley  &  Co.  were  owners  of  a  steam-mill  at  Glou- 
cester. It  happened  that  the  shaft  of  the  engine  l)roke, 
and  they  gave  it  to  the  defendant,  a  carrier,  to  take  to 
an  engineer  at  Green^ach  to  servo  as  a  pattern  for  a 
new  one;  the  defendant's  clerk  beinj?  informed  that 
the  mill  was  stopped,  and  that  the  shaft  must  be  deliv- 
ered immediately.  But  through  the  nefrliirence  of  the 
defendant  the  shaft  was  not  delivered  promptly,  and 
in  consequence  Hadley  &  Co.  did  not  get  the  new 
shaft  until  several  days  after  they  otherwise  would 
have  done,  the  mill  in  the  meantime  remaining  silent 
and  idle,  to  the  pecuniary  loss  of  the  proprietors. 
For  the  loss  of  the  profits  which  they  would  have  made 
if  the  new  shaft  had  come  to  them  when  they  expected 
it,  Hadley  &  Co.  brought  an  action,  and  the  que8tion 
was  whether  the  damages  were  too  remote.  The 
court  held  that  if  the  carrier  had  been  made  aware  that 


partial  unfulfllment  of  the  contract.  Thus,  in  a  recent  case  where 
D.  hired  B.  to  work  for  him  for  seven  months  at  $15  per  month,  and 
B.  -worked  only  flfty-nine  days  and  then  quit  without  any  good 
excuse,  it  was,  nevertheless,  held  that  B.  might  recover  from 
D.  the  sum  that  his  flfty-nine  days'  worli  was  worth,  deducting  the 
damage  to  D.  from  his  breach  of  contract.  Duncan  v.  Baker,  21 
Kas.  99. 


126  LEADING    CASES    SIMPLIFIED. 

a  loss  of  profits  would  result  from  delay  on  his  part, 
lie  would  have  been  answerable.  But  it  did  not  ap- 
pear that  he  knew  that  the  want  of  the  shaft  was  the 
only  thing  which  was  keeping  the  mill  idle,  and  there- 
fore ho  could  not  be  lia])le  for  the  loss  of  profits. 

Hadleij  V.  Baxendale  is  justly  regarded  as  the  lead- 
ing case  on  the  subject  of  damages  arising  from  a 
breach  of  contract.  It  lays  down  the  three  following 
rules  : 

1.  Damages  Avhich  may  fairly  be  considered  as  nat- 
urally arising  from  the  breach  of  contract,  according  to 
the  usual  course  of  things,  are  recoverable. 

2.  Damages,  not  arising  naturally, but  from  circum- 
stances peculiar  to  the  special  case,  are  not  recover- 
able unless  the  special  circumstances  are  known  to  the 
person  who  has  broken  the  contract. 

3.  Where  the  special  circumstances  are  known  to 
the  person  who  breaks,  and  the  damage  complained  of 
flows  naturally  from  the  breach  of,  the  contract  under 
those  special  circumstances,  such  special  damage  is 
recoverable. 


PENALTIES  AND  LIQUIDATED  DAMAGES. 


KEIUBLE  V.  FARREN. 

[GBins.  141.] 


Courts    are    very    averse    to    enforcing  exorbitaiU: 
agreements  as  to  damages  which  parties  sometimes  in- 


PERFORMANCE  OF  CONTRACTS.  127 

troduce  into  their  contracts  for  a  violation  of  their  pro- 
viijions.  Something  more  than  half  a  century  ago  an 
actor  and  a  manager  sat  down  and  made  an  agreement. 
The  actor  on  hi.s  part  undertook  to  act  as  principal 
comedian  at  the  manager's  theatre  (Covent  Garden) 
for  four  seasons,  and  in  all  things  to  conform  to  the 
regulations  of  the  theatre  ;  while  the  manager  agreed 
to  pay  the  actor  £3  65  Sd.  a  night,  and  to  allow  him  a 
benefit  once  every  season.  And  the  agreement  con- 
tained the  clause,  "  that  if  either  of  the  parties  should 
neglect  or  refuse  to  fulfil  the  said  agreement,  or  any 
part  therenf,  or  any  stipulation  therein  contained,  such 
party  should  pay  to  the  other  the  sura  of  £1,000,  to 
which  sum  it  was  thereby  agreed  that  the  damages 
sustained  by  any  such  omission,  neglect  or  refusal 
should  amount ;  and  which  sum  was  thereby  declared 
by  the  said  parties  to  be  liquidated  and  ascertained 
damages,  and  not  a  j^enaJty  or  penal  sum,  or  in  the 
nature  thereof.'"  For  some  reason  or  other  —  it  does 
not  matter  what  —  during  the  second  season  the  actor 
refused  to  act,  and  the  manager  now  went  to  law  to 
recover  the  whole  £1,000  mentioned  in  the  agreement, 
although  he  was  quite  prepared  to  admit  that  he  had 
not  sustained  damage  to  a  greater  extent  than  £750. 
The  mtmager,  however,  did  not  succeed.  '*  That  a 
very  large  sum,"  saidTiNDALL,  C.  J.,  "should  become 
immediately  payable  in  consequence  of  the  non-pay- 
ment of  a  very  small  sum,  and  that  the  former  should 
not  ])e  considered  a  penalty,  appears  to  be  a  contradic- 
tion in  terms  ;  the  case  being  precisely  that  in  which 
courts  of  equity  have  always  relieved,  and  against  which 
courts  of  law  have  in  modern  times  endeavored  to  re- 


128  LEADiya  cases  sijiplified. 

lieve,  by  directing  juries  to  assess  the  real  damages 
Bustained  b}'-  the  breach  of  the  agreement."  And  so 
the  manager  had  to  be  content  with  £750. 


FRAUDULENT  CONVEYANCES. 


TWYXE'S   CASE. 

[3  Coke,  80;   1  Smith's  Ld.Cas.  33.] 

A  farmer  named  Pierce  got  deeply  into  debt ;  and 
amongst  his  creditors  were  two  persons  named  Twyne 
and  Grasper ;  to  the  former  he  owed  £400,  and  to  the 
latter  £200.     After  repeatedly  dnnning  the  farmer  in 
vain,  Grasper  decided  to  go  to  law  for  his  money,  and 
had  a  writ  issued.     As  soon  as  Pierce  heard  of  this, 
he  took  the  other  creditor,  Twyne,  into  his  confidence, 
and  in  satisfaction  of  the  debt  of  £400  made  a  secret 
conveyance  to  him  of  everything  he  had.     In  spite  of 
this  deed,  however,  —  in  pursuance  of  the   nefarious 
arrangement    between    them,  —  Pierce    continued   in 
possession  just  as  if  he  had  never  made  it.     He  sold 
some  of  the  goods,  sheared  and  marked  some  of  the 
sheep,  and  in  every  Avay  acted  as  if  he  vrcre  the  mon- 
arch of  all  ho  surveyed,  and  Twyne  had  nothing  to  do 
with  it.     Meanwhile  Grasper  went  on  quietly  with  his 
action,  got  judgment,  and  consequently  the  assistance 
of  the  sheriff  of  Southampton,  who  appeared  one  day  at 


PERFOR31ANCE  OF  CONTRACTS.  129 

the  homestead  with  the  intention  of  carr3Mng  off  in  Mr. 
Grasper's  interest  whatever  he  might  ehancc  to  find 
there.  This  proceeding  Twyne,  who  suddenly  ap- 
peared on  the  scene,  strongly  ol)jected  to,  for,  said 
he,  "  everything  on  tiiis  farm  ])elongs  to  me^  not  to 
Pierce,"  and  in  proof  of  his  assertion,  he  produced  the 
deed  of  convej'ance. 

The  question  then  was  whether  this  deed  of  convey- 
ance was  void  within  the  meaning  of  an  act  of  Parlia- 
ment called  the  13th  Elizabeth  (from  l)eing  passed  in 
the  thirteenth  year  of  the  reign  of  that  public-spirited 
queen),  which  provided  that  all  gifts  and  conveyances, 
whether  of  lands  or  chattels,  made  for  the  purpose  of  de- 
lavino;  or  dcfraudin<>-  creditors,  shall  be  void  as  airainst 
such  creditors  unless  made  upon  a  valuable  consideration 
and  bona  fide  to  some  person  not  having  notice  of  the 
fraud.  It  was  pretty  clear  that  Farmer  Pierce's  gift 
was  for  a  valuable  consideration  ;  but  it  was  not  bona 
fide,  and  therefore  it  was  within  the  statute,  said  the 
court,  for  the  following  six  reasons  : 

1.  It  was  impossible  that  anybody  could  really 
be  so  generous  as  Farmer  Pierce  had  proposed  to  be. 
He  had  given  away  everything  he  had  in  the  world, 
even  down  to  the  boots  he  was  wearing.  Such  self- 
denial  coidd  only  be  the  cloak  of  fraud. 

2.  In  spite  of  his  r.pparent  liberality  Farmer 
Pierce  did  not  let  one  of  the  things  go,  but  '*  con- 
tinued in  possession,  and  by  reason  thereof  he  traded 
and  trafficked  with  others  and  defrauded  and  deceived 
them." 

3.  The  conveyance  was  made  in  secret.  This- 
was  a  very  suspicious  circumstance.     If  there  was  uos- 


130  LEADING    CASES    SIMPLIFIED. 

fraud  why  was  there  so  much  mystery  about  it  ?     Why 
was  not  it  done  openly  ? 

4.  It  was  made  when  Grasper  liad  ah-eady  com- 
menced an  action  and  evidently  meant  lousiness. 

5.  There  was  a  trust  between  the  parties,  and 
*•  trust  is  the  cover  of  fraud." 

6.  The  deed  alleged  that  the  gift  was  made  "hon- 
estly, truly  and  bona  fide,''  and  that  was  a  very  sus- 
picious circumstance  in  itself. 


RECOVERY  OF  MONEY  PAID  UNDER 
MISTAKE. 


]MARRIOTT  V.    HA3IPTOX. 

[7  Term  Rep.  269;  2  Smith's  Ld.  Cas.  393.] 

This  case  should  impress  the  student  with  the  wis- 
dom of  taking  care  of  the  receipt  on  those  rare  occa- 
sions when  he  pays  his  tailor's  bill.  Hampton, 
possibly,  was  not  a  tailor ;  but  he  was  no  doubt  a 
tradesman  of  some  sort,  and  in  the  course  of  his  trade 
sold  goods  to  Marriott.  These  Marriott  duly  paid  for 
and  obtained  a  receipt.  But,  instead  of  carefully  put- 
ting it  where  he  could  find  it  if  he  wanted  it,  he  jmt  it 
where  he  could  not  find  it .  By-and-by  Hampton ,  —  re- 
lying, it  may  be,  on  his  knowledge  of  Marriott's  care- 


PERFORMANCE  OF  CONTRACTS.  131 

Ipps  jyentlemanly  h:il)its, — soiit  in  his  bill  riirain  with 
the  luv  of  a  h)ng-sufferini^  and  ill-used  creditor.  Mar- 
riott had  a  distinct  rccollcftiou  of  having  paid  for  the 
trousers,  and  said  so.  IIani[)ton,  however,  challenged 
him  to  show  paper,  and  though  Marriott  looked  high  and 
low  for  the  document,  it  could  not  be  found,  and,  as 
Iiami)ton  brought  an  action,  he  was  obliged  to  pay 
over  again. 

But  it  came  to  pass  that  after  a  while  the  missing 
recei[)t  turned  up,  and  Marriott  carried  it  in  triumph 
to  Hampton's  shop.  "Yes,"  said  that  respectable 
tradcsniaii,  "  it  seems  right  enough,  I  own  ;  but  cx'cuse 
me  if  I  say  that  I  have  got  the  money,  and  I  intend  to 
stick  to  it."  Marriott  now  went  to  law  to  force  hira 
to  repay  the  money,  but  the  student  will  be  grieved 
to  hear  that  his  efforts  were  not  crowned  with  the  suc- 
cess he  deserved.  Interest  reipuhlicce  id  sit  finis  litium. 
It  is  the  interest  of  the  state  that  litigation  should 
cease,  is  an  old  maxim  of  the  law  ;  and  all  the  judges 
agre<'d  that  law  suits  must  stop  somewhere.  Said  Lord 
Kenyon,  C.  J.  :  "If  this  action  could  be  maintained  I 
know  not  what  cause  of  action  could  ever  be  at  rest. 
After  a  recovery  by  process  of  law  there  must  be  an  end 
of  litigation,  otherwise  there  would  be  no  security  for 
any  person."  ^ 


1  So,  if  a  man  pays  over  money  with  a  full  knowledge  of  tho 
facts,  but  mistaking  the  law  of  tlie  case,  he  cannot  recover  it  back. 
A  sea  captain  once  on  a  time  made  a  blunder  of  this  sort.  He  had 
broniht  home  in  his  ship  a  large  quantity  of  treasure,  a  part  of 
■which  he  gave  to  a  certain  admiral  under  whose  convoy  he  had 
sailed,  not  at  all  in  a  spirit  of  gratitude,  but  believing  that  he  was 
bound  by  law  to  pay  it.  By-and-by  he  discovered  that  the  law  did 
not  compel  him  to  do  anything  of  the  kind,  and  he  brought  an  ac- 
tion to  get  it  back,  but  did  not  succeed.    But  if  the  mistake  is  one 


132  LEADING   CASES   SIMPLIFIED. 


yill.  —  Sales. 


WHEN  SALE  COMPLETE,  PROPERTY  PASSES 
AT  ONCE. 


TARLING  V.  BAXTER. 

[6  Barn.  &  Cress.  3G0.] 

On  January  4,  1825,  it  was  in  writing  agreed  be- 
tween Mr.  Baxter,  and  Mr.  Tarling,  that  the  former 
should  sell  to  the  latter  a  stack  of  hay,  then  standing  in 
his  field,  at  the  price  of  £145.  Payment  was  to  bo 
made  on  February  4th,  but  the  stack  was  to  be  allowed 
to  remain  where  it  was  till  May-day.  It  was  not  to  be 
cut  till  paid  for.  This  was  held  to  be  an  immediate, 
not  a  prospective,  sale,  so  that  when  on  January  20th 
the  stack  was  accidentally  burnt  down,  the  loss  fell  on 
Tarling,  the  buyer.  *'  The  rule  of  law,"  said  Bayley, 
J.,   *'is  that  where  there  is  an  immediate  sale,  and 


of  fact  it  is  different.  Mr.  Wheadon  found  out  to  liis  gratification 
that  this  was  so,  after  a  passage  at  law  with  Mr.  Olds.  The  foi-mer 
had  bought  a  lot  of  wheat  of  Olds,  the  quantity  beingestimated  by  the 
size  of  another  pile  which  both  supposed  to  contain  a  certain  num- 
ber of  bushels,  but  which  subsequently  was  discovered  to  contain 
only  that  number  of  half  bushels.  This  being  a  mistake  of  fact,  Mr. 
Wheadon  succeeded  in  recovering  the  excess  payment.  Wheadon 
fa.  Olds,  20  Wend.  175. 


SALES.  133 

nothing  remains  to  be  done  by  the  vendor  as  between 
him  and  the  vendee,  the  property  in  the  thing  sold 
vests  in  the  vendee,  and  then  all  the  consequences  re- 
sulting from  the  vesting  of  the  property  follow,  one  of 
which  is  that,  if  it  be  destroyed,  the  loss  falls  on  the 
vendee." 


UliLESS  SOME  Til IXG  REMAINS  TO  BE  DONE. 


GIBBS  V.  BEXJAMEf. 

[45  Vt.  124.] 

On  the  edge  of  Mr.  Gibbs'  farm,  on  Lake  Champlain, 
there  was  a  quantity  of  wood  cut  and  piled,  which 
Mr.  Benjamin  agreed  to  purchase  at  $3.50  a  cord.  It 
was  }nirt  of  the  contract  that  the  parties  should  meet 
and  ascertain  the  quantity.  This  they  did  a  day  or 
two  later,  but  they  had  scarcely  commenced  the  meas- 
urino"  'hefore  thoy  disagreed  on  the  method  of  doing  it. 
This  issue  grew  into  a  controversy  which  was  not  set- 
tled when  a  flood  came  along  and  carried  the  whole  of 
the  wood  into  the  lake.  Then  Gibbs  sued  Benjamin 
for  the  price,  claiming  that  the  latter  having  previously 
bought  the  wood  must  stand  the  loss.  But  the  court 
decided  that  tlie  property  had  never  passed  to  Bejamin 
tind  that  he  was,  therefore,  not  liable  for  the  price. 
"  The  principle  is  well  settled,  and  uniform  in  all  the 


134  LEADING   CASES   SIMPLIFIED. 

cases,"  said  Eedfield,  J.,  "  that  when  anything  re- 
mains to  be  done  by  either  or  both  parties,  ])i'ecedent 
to  the  delivery,  the  title  docs  not  pass.  And  so  in- 
flexible is  the  rule  that  when  the  property  has  been 
delivered,  if  anything  remains  to  ])e  done  by  the  terms 
of  the  contract  before  the  sale  is  complete,  the  prop- 
erty still  remains  in  the  vendor.  The  contract  must 
be  executed  to  effect  a  completed  sale,  and  nothing  fur- 
ther to  bo  done  to  ascertain  the  quality,  quantity,  or 
value  of  the  property.  Tlie  general  rule  in  relation  to 
the  sale  of  personal  property  is,  that  if  anything  re- 
mains to  be  done  by  the  seller  before  delivery,  no 
property  passes  to  the  vendee,  even  as  betvv'ccn  the 
parties.  This  rule  of  law,  applied  to  the  facts  as  re- 
ported in  this  ease,  retains  the  property  in  the  wood 
in  the  plaintifT,  and  leaves  the  contract  executory  and 
as  a  sale  incomplete." 


WARR^INTIES. 

CHAXDELOR  v.  LOPUS. 

[2  Cro.  2;  1  Smith's  Ld.  Cas.  238.] 

In  the  da3^s  when  superstition  was  rife  —  for  it  was 
half  a  century  before  Sir  Matthew  Hale  began  to  burn 
witches  —  it  was  generally  thought  that  a  bezoar  stone 


BALES. 


135 


w:\s  ii  charm  against  most  of  the  ills  of  life  ;  and  such 
stones  accordinirlv  brought  big  prices.  Mr.  Lopus 
had  a  pardonal)lo  desire  to  bo  exempt  from  as  iiiaiiy  of 
the  ills  of  life  us  possible,  and  went  to  Chandelor's 
shop  —  Chandelor  was  a  jeweller  —  and  paid  £100  for 
a  stone  that  the  tradesman  distinctly  told  him  was  a 
bezoar.  Mr.  Lopus  went  away  a  happy  man,  but  after 
a  short  time,  finding  ho  was  not  so  free  from  the  ills 
of  life  as  ho  expected  to  be,  his  suspicions  were 
aroused.  He  made  inquiries,  and  discovered  that  his 
fancied  treasure  was  not  a  bezoar  at  all,  and  was 
decidedly  fitter  for  mending  the  highway  than  for 
curing  auA'body's  neuralgia. 

Under  these  circumstances,  Lopus  went  to  law  with 
the  jeweller  who  had  sold  him  the  stone.  But  he 
failed,  for  he  was  unable  to  give  satisfactory  answers 
to  two  questions  which  the  judges  put  to  him,  viz.  :  — 

1.  Did  Ckandelor  warrant  this  stone  to  be  a  bezoar? 
<'No,"  replied  Lopus,  gloomily,  "I  can't  say  he 

exactly  warranted  it.     But  he  certainly  said  it  was  a 
hezoarJ' 

"Very  likely,"  said  the  court,  "but  saying  isn't 
warranting.     You  cannot  recover  in  contract." 

2.  Did  Ohandelor,  when  he  told  you  that  it  ivas  a 
bezoar,  know  that  it  ivas  not? 

"  How  on  earth  can  I  tell,"  replied  Lopus,  "  what 
the  man  knew,  or  did  not  know?  " 

"  Then,"  said  the  court,  "  neither  can  you  recover 
in  tort." 

The  probabilities  are,  that  if  Lopus  had  been  a  liti- 
gant of  to-day,  he  would  have  succeeded  on  both 
points.  He  would  have  hit  the  jeweller  in  contract 
because  "  every  affirmation  at  the  time  of  the  sale  of 


13(3  LEADING    CASES   SIMPLIFIED. 

a  personal  chattel  is  a  loarranty  if  it  appears  to  have 
been  intended  as  such,"  and  Chandelor's  assertion 
that  the  stone  was  a  bezoar  would,  no  doubt,  be  con- 
sidered sufficient.  He  would  have  succeeded  in  tort^ 
because  the  fact  that  the  defendant  was  a  jeweller 
would  be  damning  evidence  that  he  knew  one  stone 
from  another. 


IMPLIED  WARRANTY  OF  QUALITY  OF  GOODS. 


JONES  V.  JUST. 

[L.  R.  3  Q.  B.  197.] 


Jones  &  Co.,  Liverpool  merchants,  agreed  to  buy 
from  Mr.  Just,  a  London  inercliant,  a  number  of  bales 
of  manila-hcmp,  which  were  expected  to  arrive  in 
some  ships  from  Singapore.  The  hemp  did  arrive, 
but,  when  it  was  examined,  it  was  found  to  be  so  much 
damaged  that  it  would  not  pass  in  the  market  as  ma- 
nila-hemp  ;  and  Jones  &  Co.,  who  had  paid  the  price 
before  the  ships  arrived,  had  to  sell  it  at  seventy-five 
per  cent  of  the  price  which  similar  hemp  would  have 
realized  if  undamaged.  This  was  an  action  by  them 
airainst  the  seller,  who  was  admitted  to  have  acted 
quite  innocently  in  the  matter,  to  recover  the  differ- 
ence ;  and  it  was  held  that  he  must  pay  it,  on  the 
ground   that  in  every  contract  to  supply  goods  of  a 


SALES.  137 

specified  description,  which  the  buyer  has  no  oppor- 
tunity of  inspecting,  the  goods  must  not  only  corre- 
spond to  the  spccitiod  description,  but  must  also  be 
saleable  or  merchantable  under  that  description. 

The  maxim  caveat  emptor  (the  buyer  must  look  out 
for  himself)  generally  applies  as  to  the  quality  of 
goods  sold,  and  unless  there  is  au  express  warranty 
there  is  no  warranty  at  all.  But  a  warranty  is  implied 
in  the  following  cases  :  — 

1 .  AVhen  goods  are  sold  by  a  trader  for  a  particular 
purpose  of  which  he  is  well  aware,  — e.g.,  copper  for 
sheathing  a  ship,i  or  a  rope  for  hoisting  goods,^  or 
fertilizing  manure  for  a  farm ,^  or  boxes  for  packing 
tobacco  in, ^  there  is  an  implied  warranty  on  his  part 
that  they  shall  be  reasonably  fit  for  the  purpose  for 
which  they  are  bought. 

2.  AVhen  the  contract  is  to  furnish  manufactured 
floods  they  must  be  of  a  merchantable  quality. 

3.  In  the  case  of  a  sale  by  sample  there  is  an  im- 
plied undertaking  that  the  sample  is  fairly  taken  from 
the  bulk. 

4.  The  custom  of  a  particular  trade  may  require  a 
warranty  where  none  is  expressly  given. ^ 

5.  On  the  sale  of  chattels  there  is  an  implied  war- 
ranty of  title  ;  i.e.,  that  they  are  the  property  of  the 
purchaser.* 


*  Jones  V.  Bright;  5  Bing.  633. 

2  Brown  v.  Edgington,  2  Mac.  &  G.  279. 

3  Mason  v.  Cbappell,  15  Gratt.  672. 

*  Gerst  V.  Jones,  10  Cent.  L.  J.  150. 

*  Lawson,  Us.  &  C,  sect.  158. 

"Thurston  v.  Spratt,  32  Me.  202;  Williamson  v.  Simmons,  34 
Ala.  691. 


138  LEADIXU    CASES    SIMI'LIFIED. 

WABBANTT    MUST    BE    DURING    COURSE    OF 

SALE. 


HOGIXS    V.   PLYIMPTON. 

[11  Pick.  07.] 

The  plaintiff  purchased  of  the  defendaut  a  quantity 
of  wine  in  bottles.  After  the  sale  was  consummated, 
and  the  defendant  had  received  payment  in  negotiable 
paper,  ho  wrote  out  a  memorandum  of  the  sale,  which 
he  sent  to  the  plaintiff.  In  this  the  wine  was  described 
as  "  good  fine  wine."  But  when  the  plaintff  camo  to 
open  the  bottles,  he  found  that  it  was  anything  but 
"good  fine  wnne," — in  short,  it  was  very  bad  sour 
wine.  Then  the  plaintiff  brought  an  action  alleging 
that  the  description  of  the  liquor  in  the  memorandum 
of  sale  was  a  warranty  that  it  was  good  fine  wine.  But 
the  court  held  that.it  was  not  necessary  to  decide  whether 
this  was  so  or  not,  for  the  reason  that  the  strongest  kind 
of  a  warranty,  if  made  after  the  sale  is  completed,  is 
invalid.  To  support  a  warranty  not  given  in  the  course 
of  the  sale,  there  must  be  a  new  consideration  ;  for  the 
consideration  given  for  the  goods  is  exhausted  hy  their 
transfer  without  a  warranty,  and  there  is  nothing  to 
support  a  subsequent  warranty. 


PRINCIPAL   AND    AGENT.  139 


IX.  —  Pkes^cipal  A^^)  Agent. 


SPECIAL  AGENT  MUST  PURSUE  AUTHORITY. 


BATTY    V.   CARSWELL. 

[2  Johns.  48;   1  Xva.  Ld.  Cas.  653.] 

Mr.  Abner  Carswell,  at  the  solicitation  of  his  brother, 
who  wimted  to  raise  some  money,  told  his  agent  that 
he  might  sign  his  (Abner's)  name  to  a  note  for  $250, 
payable  in  six  months.  A  few  days  after,  the  brother 
and  the  agent  got  together,  and  the  agent  signed 
Abner's  name  to  a  note  for  $250,  payable  in  sixty 
days.  The  brother  gave  this  note  to  a  creditor.  "When 
it  fell  dne,  Abner  refused  to  pay  it,  and  the  creditor 
sued  him,  but  without  success,  the  court  deciding  that 
as  this  was  a  special  authority  to  do  a  particular  thing 
in  a  particuhir  way,  the  principal  was  not  liable  for  the 
act  of  the  agent  in  executing  his  power  in  a  different 
way. 


140  LEADING   CASES    SIMPLIFIED. 

DEATH  OF  PRINCIPAL  REVOKES  AUTIIORTIY. 


HARPEIl  v.  LITTLE. 

[2  Me,  14;  11  Am.  Dec.  1.] 

In  March,  1811,  Mr.  AVilliani  Jackson,  who  resided  iu 
Mexico,  gave  a  power  of  attorney  under  seal  to  Har- 
per, authorizing  him  to  sell  his  real  estate  in  Portland, 
Maine.  On  the  8th  of  January,  1814,  Harper,  as 
Jackson's  agent,  sold  the  property  to  Little  and 
received  and  pocketed  the  purchase-money.  Between 
these  two  dates  there  had  been  a  little  misunderstand- 
m<y  between  the  United  States  and  Great  Britain, 
which  had  interrupted  intercourse  between  Maine  and 
foreign  countries,  and,  consequently,  it  was  some  time 
after  the  sale  had  been  consummated  that  it  became 
known  to  the  parties  in  Portland  that  Mr.  Jackson  had 
departed  this  life  on  the  eighteenth  day  of  August,  1813. 
His  executors  failing  to  ol)tain  the  purchase-money 
from  Harper,  brouglit  an  action  to  recover  the  prop- 
erty, and  were  successful  under  the  rule  of  law  that 
the  death  of  the  principal  causes  an  instantaneous  revo- 
cation of  the  authority  of  the  principal.^ 


1  "A  few  illustrations,"  says  the  writer  of  a  forcible  article  on 
this  subject,  published  a  few  years  ago  (see  G  Cent.  L.  J.  383),  "  will 
serve  to  show  how  technical  and  artificial  are  the  reasons  which, 
have  been  considered  sufficient  to  justify  the  rule  that  no  valid  act 
can  be  done  by  an  agent  acting  for  a  deceased  person,  though  no 
notice  of  the  death  of  the  principal  has  reached  the  parties  at  the 
time  of  the  transaction. 

"  Suppose  A.,  who  lives  in  Milwaukee,  does  the  following  acts 
on  the  first  day  of  May :  — 

"  I.  Executes  his  promissory  note  to  B.,  due  one  year  after  date. 

"  II.  Executes  his  last  will  and  testament  in  proper  foi-m,  by  the 


PRINCIPAL   AND    AGENT.  141 


CONTRACTS   WITH  AGENTS   OF  UNDISCLOSED 
PRINCIPALS. 


PATERSON  V.   GAXDASEQUI. 

[15  East,  G2;  2  Smith's  Ld.  Cas.  349.] 

Gandasequi,  a  respectable  and  enterprising  Spanish 
merchant,  made  up  his  mind  that  the  foreign  market 
could  do  Avith  some  silks  and  satins.  He  accordingly 
set  sail  for  England,  and,  on  reaching  London,  v,^ent 
to  Larrazabal  &  Co.,  certain  agents  in  the  cit}',  and 
commissioned   them  to  buy  a  quantity  of  goods  for 


terms  of  which  his  property  is  left  mainly  to  strangers,  and  his 
natural  heirs,  though  deserving,  are  left  with  but  a  pittance. 

"  III.  Gives  C.  and  D.,  who  are  his  agents  at  New  York,  each 
written  authority  to  purchase  certain  goods  in  his  name. 

«<  On  May  2d  he  writes  to  C.  not  to  buy  any  goods.  The  next  day, 
May  3rd,  A.  is  accidentally  billed. 

"  Let  us  see  how  far  the  law  respects  his  wishes  and  compels  his 
representatives  to  fulfil  the  obligations  he  has  incurred.  Ot  course 
his  representatives  must  pay  the  note,  though  given  in  Ids  name, 
and  therefore  the  promise  of  a  dead  man.  In  this  case  tlie  law  im- 
plies an  agreement  on  his  part  that  his  representatives  shall  be 
bound  by  his  contract,  and  gives  effect  to  that  agreement.  His 
wishes  as  set  forth  in  the  will  are  respected  and  enforced  by  the 
law,  though  they  are  the  wishes  of  a  dead  man,  a  man  who  can  no 
longer  act,  and  though  they  do  great  injustice  to  those  who  should 
rightfully  enjoy  his  property. 

<'0n  May  3rd,  C.  and  D.  receive  A.'s  letters,  written  May  1st, 
and  each  purchases  goods  according  to  his  instructions,  C.  pur- 
chasing immediately  before,  and  D.  immediately  after  the  death 
of  A.  Each  agent  ships  the  goods  bought  by  him  to  Milwaukee, 
consigned  to  A.  The  goods  are  subsequently  destroyed  on  the 
road  by  the  '  act  of  God.'    The  parties  of  whom  the  goods  were 


142  LEADING    CASES    SDirLIFIED. 

him.  Larr.  &  Go.  (life  is  too  short  to  repeat  the 
whole  name)  proceeded  to  execute  the  commission, 
and  asked  Patersoii  &  Co.,  a  great  hosiery  firm,  to 
send  certain  specified  articles,  with  terms  and  prices. 
Now,  Paterson  &  Co.  knew  Larr.  &  Co.,  and  had  per- 
fect confidence  in  them,  but  Gandasequi  they  did  not 
know,  and  had  no  confidence  in.  Therefore,  though 
they  sent  the  goods  and  tliouirh  they  knew  perfectly 
well  that  they  were  really  for  Gandasequi,  and  that 
Larr.  &  Co.  were  merely  his  agents  in  the  matter,  yet 
for  all  that  they  booked  the  goods  as  sold  to  Larr.  & 
Co.  This  was  unfortunate,  ])ecause  it  happened  that 
Gandasequi  was  really  a  more  substantial  person  than 
his  agents,  who  shortly  afterwards  went  to  financial 
smash.  Paterson  was  not  disposed  to  be  content  with 
the  fraction  of  his  debt,  which,  as  a  creditor  in  bank- 


purchased  take  steps  to  recover  the  purchase-money  of  the  repre 
sentatives  of  A.  Now,  the  authority  of  C.  to  purchase  goods  was, 
in  fact,  rescinded  before  they  were  brought,  by  the  second  letter  of 
A.  The  law,  however,  very  properly  protects  those  who  deal  with 
an  agent  without  notice  that  his  authority  has  been  revoked,  and 
the  fact  that  A.  had  done  all  in  his  power  to  revoke  the  order  he 
had  previously  made,  and  that  such  order  was  absolutely  rescinded, 
would  not  enable  the  representatives  of  A.  to  avoid  the  liability  he 
thus  assumed.  But  in  the  case  of  D.,  whose  authority  A.  never  at- 
tempted or  intended  to  revoke,  the  law  holds,  that  the  vendor  of  the 
goods  cannot  recover,  simply  because  the  party  in  whose  name  the 
contract  was  made,  was  not  living  at  that  time.  In  both  cases,  the 
act,  by  virtue  of  which  each  agent  was  empowered  to  buy,  was  the  act  of 
a  living  principal.  In  the  case  of  C.  the  principal  does  all  in  his 
power  to  prevent  the  agent  from  acting;  in  the  case  of  D.  he  de- 
sires the  agent  to  act,  and  does  nothing  to  prevent  him.  The  law 
interposes  a  technical  rule  which  entirely  defeats  his  intentions* 
and  in  effect  places  upon  one  of  the  innocent  vendors  the  burden 
of  paying  a  heavy  insurance  on  the  life  of  A.  without  receiving  any 
consideration  therefor." 


PRINCIPAL    AND   AGENT.  143 

ruptcy,  he  might  have  got  from  Larr.  &  Co.,  and, 
with  the  laudable  object  of  getting  the  whole  of  his 
money,  sued  Gandascqui.  But  it  was  held  that,  if  the 
seller  of  goods  knows  that  the  person  he  deals  with  is 
only  an  agent,  and  knoios  also  loho  his  principal  is,  and 
in  S[)ite  of  that  knowledge  chooses  to  give  the  credit 
to  the  agent,  he  must  stand  by  his  choice,  and  cannot 
sue  the  principal.  '<  I  have  generally  understood," 
said  Bailey,  J.,  "  that  the  seller  may  look  to  the  prin- 
cipal when  ho  discovers  him,  unless  he  has  abandoned 
his  right  to  resort  to  him.  I  agree  that  where  the 
seller  knows  the  principal  at  the  time,  and  yet  elects 
to  irive  credit  to  the  aorent,  he  must  be  taken  to  have 
abandoned  such  right,  and  cannot,  therefore,  afterwards 
sue  the  principal." 


THOMSON  V.  DAVEXPORT. 

[9  Barn.  &  Cress.  78;  2  Smith's  Ld.  Cas.  358.] 

A  person  named  McKune  carried  on  at  Liverpool 
the  business  —  whatever  it  may  be- — of  a  "general 
Scotcli  merchant."  This  gentlemen  one  day  received 
a  letter  from  some  customers  of  his  in  the  land  of 
Burns,  to  the  following  effect :  — 

Dumfries,  March  29,  1823. 
Dear   Sir  :    Annexed  is   a  list  of  goods  which  you 
will  please  procure  and  ship  per  Nancy.     Memorandum 
of  goods  to  be  shipped.     Twelve  crates  of  Stafford- 


144  LEADING    CASES    SIMrLlFIED. 

shire  ware  crown  window  glass,  ten  square  hoxes,  etc., 
etc.  Yours,  etc., 

Thomson  &  Co. 

On  receivins:  this  letter  McKune  went  straight  to  the 
shop  of  Davenport  &Co.,  who  were  glass  and  earthen- 
ware dealers,  and  had  an  interview  with  their  head 
partner.  He  did  not  pretend  to  he  hu3Mng  for  himself. 
He  said  he  had  received  an  order  to  purchase  some 
goods  for  some  customers  in  Scotland,  hut  lie  did  not 
mention  their  name^  and  the  Daveuports  did  not  ask  for 
it.  They  sold  about  £200  worth  of  goods  and  debited 
McKune,  though  they  knew  perfectly  well  he  was 
only  an  agent.  Then  McKune  failed  without  having 
paid  Davenport  &  Co. 

This  was  an  action  by  Davenport  &  Co.  against 
McKune's  principals,  Thomson  &  Co.,  who  denied 
their  liability  on  the  ground  that  Davenport  &  Co. 
had  debited  McKune,  and  could,  therefore,  look  only 
to  him  for  payment.  This  view,  however,  was  not 
adopted  by  the  court,  and  Thomson  &  Co.  were  made 
to  pay,  the  principle  being  that,  as  the  name  of  the 
real  buyer  had  not  been  disch)scd  to  them  ])y  the 
agent,  tlie  sellers  had  had  no  opportunity  of  writing 
him  down  as  their  debtor. 

The  chief  rules  on  this  subject  are — 1.  Where  you 
contract  with  a  man  whom  you  know  to  be  an  agent, 
and  you  know  also  who  his  principal  is,  but,  in  spite 
of  such  knowledge,  you  give  credit  to  the  agent,  and 
to  him  alone,  you  are  bound  by  such  election,  and  can 
not  afterwards  sue  the  principal. 

2.  Where  you  deal  with  a  man  who  appears  to  be  a 
principal,  you  may,  on  discovering  that  he  is  only  an 


riilXCirAL    A\l>    AOKNT,  145 

agent,  sue  liini  or  his  jir'mcipal  at  your  pleasure.  It 
is  necessary,  however,  that  you  should  make  your 
election  between  thcni  within  a  reasonable  time. 

3.  "Where  you  deal  with  a  man  who  is  known  to  be 
an  agent,  but  whoso  pi-incipal  is  undisclosed,  you  may, 
on  giving  evidence  that  he  is  himself  principal,  sue 
him  ;  otherwise,  you  must  sue  his  principal. 

4.  If  a  person  signs  a  contract  in  his  own  name 
without  disclosing  the  fact  that  he  is  only  an  agent, 
he  \s  prima  facie  to  l)o  deemed  the  person  responsible  ; 
and,  on  action  being  brou2:ht  aijainst  him  on  the  con- 
tract,  be  cannot  turn  round  and  shuffle  olf  his  lial)ility 
by  saying  that  ho  was  only  somebody  else's  agent. 
Parol  evidence  to  prove  such  a  thing  would  not  be  ad- 
mitted, and  if  he  gets  out  of  the  scrape  at  all,  it  will 
be  because  it  is  quite  clear  from  the  rest  of  the  docu- 
ment that  he  did  not  mean  to  bind  himself  personall3\ 
And,  indeed  (as  we  shall  see  in  the  next  case),  the 
person  who  has  signed  a  contract  in  his  own  name  raav 
still  be  liable,  althougli  \\\  the  body  of  the  contract  he 
has  expressly  declared  himself  to  be  an  agent. 


STOXE  V.  WOOD. 

[7  Cow.  453;  17  Am.  Dec.  52!).] 


Captain  Stone,  part  owner  and  master  of  the  good 
ship  George,  and  Timo  N.  Wood  entered  into  a  con- 
tract under  seal,  the  provisions  of  which  are  not  rele- 


146  LEADING    CASES    SIMPLIFIED. 

vant  to  this  history.  It  is  enough  to  s:iy  that  the 
contract  dGscril)ed  Wood  "  as  agent  of  J.  &  R.  Ray- 
mond," and  referred  to  him  throughout  "  as  agent," 
closing  with  an  agreement  by  Wood  "  as  agent,"  to 
l^ay  a  certain  sum  to  the  captain  on  certain  conditions. 
These  conditions  being  performed,  the  captain  sued 
for  the  money,  to  which  Wood  replied  that  J.  &  R. 
Raymond  were  the  persons  to  whom  he  ought  to  look. 
But  the  captain  did  not  see  it  in  this  light,  and  neither 
did  the  Supreme  Court  of  New  York.  They  said  that 
an  agent  signing  a  contract  in  his  own  name  is  person- 
ally bound  thereon,  even  though  he  is  descril)ed  in  it 
as  an  agent.  The  words  *'  as  agent,"  are  a  mere  de- 
scription of  the  person. 


SET-OFF  AGAINST  PRINCIPAL. 


GEORGE    V.    CLAGETT. 

[7  Term  Rep.  359;  2  Smith's  Ld.  Cas.  185.] 

Messrs.  Rich  &Heapy  carried  on  business  in  woollen 
cloths.  For  the  purposes  of  their  riches  heaping  they 
not  only  carried  on  business  on  their  own  account,  l)ut 
acted  also  as  factors  for  other  people.  A  factor,  it 
should  be  remarked,  differs  from  an  ordinar>^  agent  in 
having  the  possession  of  the  goods  of  liis  principal 
which  he  sells.  As  Rich  &  Ileapy  carried  on  all  their 
business  at  the  same  warehouse,  it  would  not   be  ob- 


PRINCIPAL    AND    AGENT.  147 

vious  when  they  were  acting  as  prnicipals  and  when  as 
agents.  At  the  titno  of  our  story,  Messrs.  Rieh  & 
Henpy  lia[)penod  to  have  in  tiieir  possession  as  factors 
a  largo  quantity  of  goods  belonging  to  Mr.  George,  a 
clothier  of  Frome,  which  goods  were  in  their  ware- 
house along  with  goods  belonging  to  themselves.  It 
happened  just  then  that  Messrs.  Clagett  were  in  want 
of  such  goods.  They  held  a  bill  of  exchange  for 
£1200,  accepted  by  Rich  &  Heapy,  and  as  they  saw 
no  particular  likelihood  of  getting  paid,  they  thought 
it  wouhl  not  be  a  bad  phm  to  buy  goods  from  them  on 
credit,  and  deduct  the  amount  of  the  bill  from  the  pur- 
chase-money. In  pursuance  of  this  plan,  Messrs.  Rich 
&  Ileapy  sold  them  a  quantity  of  goods  ;  making  out 
a  bill  of  parcels  for  the  whole  in  their  own  names,  and 
Messrs.  Cln2:ett  fullv  believed  that  thev  were  dealing 
with  pi'incii)als.  Messrs.  Rich  &  Heapy  took  the 
ffoods  out  of  one  wneral  mass  in  their  warehouse,  so 
that  a  large  portion  of  them  reatly  belonged  to  the 
clothier  of  Frome,  the  unfortunate  Mr.  George. 

This  was  an  action  l)y  that  gentleman  against  Messrs. 
Clngett  for  the  price  of  the  portion  of  the  goods 
Avhich  belonged  to  him,  and  which  he  said  Messrs. 
Rich  &  Ileapy  had  sold  as  his  agents.  Messrs.  Clag- 
ett said  they  did  not  know  that  Rich  &  Heapy  were 
his  jiixents  or  anybody  else's  aijents,  and  claimed  to 
have  the  same  right  of  set-off  (that  is  to  say,  of  de- 
ducting the  above-mentioned  del)t)  which  they  would 
have  had  against  Messrs.  Rich  &  Heapy.  In  this  con- 
tention thev  were  successful.^ 


'  "  In  all  those  cases  of  set-off,"  says  an  eminent  jndjce  in  a 
later  case,  "  t'.ie  law  endoa'-ors  to  meet  the  real  honesty  and  justice 
oi.  the  case.    Where  goods  are  placed  in  the  hands  of  a  fact(>r  foi 


148  LEADING    CASES   SIMPLIFIED. 


AGENT   EXCEEDING    AUTHORITY  LIABLE    IN 
CO:^TRACT. 


COLLEX  V.  AVKIGHT. 

[7  El.  &  Bl.  301 ;  8  Id.  G47.] 

Mr.  "Wright  was  the  hind  agent  of  a  gentleman 
named  Dunn  Gardner,  and  as  such  made  an  agree- 
ment with  a  Mr.  Collen  for  the  lease  to  hiin  for  twelve 
and  a-half  years  of  a  farm  of  Dunn  Gardner's.  On 
the  strength  of  this  agreement  Collen  entered  on  the 
enjoyment  of  the  farm ;  but  he  soon  found  that  there 
was  a  serious  difficulty  in  the  way.  Mr.  Dunn  Gard- 
ner refused  to  execute  any  such  lease,  saying  tli;it  he 
had  never  authorized  Mr.  "Wright  to  agree  for  a  lease 
for  so  long  a  term  ;  and  this  proved  to  be  the  f:ict. 
The  disappointed  farmer  brought  an  action  against  the 
executors  of  the  agent  who  had  led  him  wrong,  and 
the  main  question  was  whether  "W^right's  assuming 
to  act  as  Dunn  Gardner's  agent  to  grant  the    lease 


sale,  and  are  sold  by  him  under  circumstances  that  are  calculated 
to  induce,  and  do  induce,  a  purchaser  to  believe  that  he  is  dealiug 
with  his  own  floods,  the  principal  is  not  permitted  afterwards  to 
turn  round  and  tell  the  vendee  that  the  character  he  himself  has 
allowed  llie  factor  to  assume  did  not  really  belong  to  him.  The 
purchaser  may  have  bought  for  tlie  express  purpose  of  setting  off 
the  price  of  the  goods  against  a  debt  due  to  him  from  the  seller." 
These  words  put  the  rule  and  its  reason  very  clearly.  "But  the 
case  is  different  where  the  purchaser  has  notice  at  the  time  tliat  the 
seller  is  acting  merely  as  the  agent  of  another.  In  that  case,  there 
would  be  no  honesty  in  allowing  the  purchaser  to  set  off  a  bad  debt 
at  the  expense  of  the  principal."     Fish  v.  Kempton,  7  C.  B. 


PRINCIPAL    AND    AGKNT.  149 

amounted  to  a  contract  on  his  part  that  he  had  such 
authority.  This  was  the  view  adopted,  so  that 
Wright's  executors  became  liable  to  CoUen.  "lam 
of  ()[)inion,"  said  Willks,  J.,  delivering  the  judgment 
of  the  Court  of  Exche(|ucr  Chaniboi-,  "that  a  person 
who  incbiccs  another  to  contract  with  him  as  the  agent 
of  a  third  party,  by  an  unqualified  assertion  of  his 
being  authorized  to  act  as  such  agent,  is  answerable  to 
the  person  who  so  contracts,  for  any  damages  which 
he  niav  sustain  by  reason  of  the  assertion  of  authority 
being  untrue.  This  i.s  not  the  case  of  a  bare  misstate- 
ment by  a  person  not  bound  by  any  duty  to  give  in- 
forination.  The  fact  that  the  professed  agent  honestly 
thinks  that  he  has  authority  affects  the  moral  charac- 
ter of  his  act  ;  l)ut  iiis  moral  innocence,  so  far  as  the 
person  v.- horn  ho  has  induced  to  contract  is  concerned, 
in  no  way  aids  such  person  or  alleviates  the  inconveni- 
ence and  damage  which  he  sustains.  The  obligation 
arising  in  such  a  case  is  well  expressed  by  saying  that 
a  pci'son  professing  to  contract  as  agent  for  another 
impliedly,  if  not  expressly,  undertakes  to  or  promises 
the  person  who  enters  into  such  contract  upon  the 
faith  of  the  professed  agent  being  duly  authorized, 
that  tlio  anthority  which  he  professes  to  have  does  in 
point  of  fact  exist.  The  fact  of  entering  into  the 
transaction  with  the  professed  agent  as  such  is  good 
consideration  for  the  promise." 


150  LEADING    CASES    SIMPLIFIED. 


PARTNERSHIP  LIABILITY. 


WAUGH   V.  CAKVER. 

[2  H.  Black.  235;  1  Smith's  Lcl.  Cas.  9C8.] 

In  Fcbruarv,  1790,  Enismiis  Carver  and  William 
Carver,  ship-agents,  of  Southampton,  of  the  one  part, 
and  Archibald  Griesler,  ship-agent,  of  Plymouth,  of  the 
other  i)art,  entered  into  a  rather  wide-awake  agree- 
ment for  their  mutual  benefit.  By  the  terms  of  this 
ao-reemont  Giesler  was  to  remove  from  Plymouth  and 
settle  at  Cowes.  There  he  was  to  establish  a  house 
on  his  own  account,  which  the  Carvers  were  to  puff. 
Giesler,  on  the  other  hand,  was  to  endeavor  to  per- 
suade all  the  ship-masters  putting  into  Portsmouth  to 
employ  the  Carvers.  Arrangements  were  made  for 
sharing  in  certain  proportions  the  profits  of  their  re- 
spective commissions,  and  the  discount  on  the  bills  of 
tradesmen  en)i)loycd  by  them  in  repairing  the  ships 
consigned  to  them.  It  was  also  expressly  provided 
that  neither  of  the  parties  to  the  agreement  should  be 
answeral)le  for  the  acts  or  losses  of  the  other,  but  each 
for  his  own.  Accordingly,  Giesler  left  Plymouth  and 
came  to  Cowes,  and  in  the  course  of  carrying  on  his 
business  there  he  incurred  a  certain  dcl)t  to  the  plain- 
tiff in  this  action,  who  now  sought  to  make  the  Car- 
vers liable  on  the  ground  that  the  agreement  made  them 
partners  with  Giesler  and  responsible  for  his  debts. 

It  was  held,  in  spite  of  the  clause  providing  that 


PRINCIPAL,   AXD    AORNT.  151 

each  should  be  responsible  for  his  own  losses,  that  the 
agrocincnt  did  make  the  Carvers  partners,  for:  — 

1.  He  who  takes  the  profits  of  a  partnership  must 
of  necessity  be  ni.ide  liable  for  the  losses. 

(1  he  stiideiil,  however,  must  h>ok  at  the  next  case 
before  taking  this  proposition  for  gospel.) 

2.  He  who  lends  his  name  to  a  partnership  becomes, 
as  against  all  the  rest  of  the  world,  a  partner. 


COX  V.  HIC30IAX. 

[8  n.  L.  Cas.  2G8.] 


Messrs.  Smith  &  Co.,  iron-merchants,  becoming  in- 
solvent, a  deed  of  arrangement  was  executed  between 
them  and  their  creditors.  By  this  deed  Smith  &  Co. 
assigned  all  their  property  to  five  trustees  to  carry  on 
the  business  under  the  name  of  the  Stanton  Iron  Com- 
pany. The  trustees  were  to  manage  the  works  as  they 
thought  fit,  and  to  execute  all  contracts  and  instru- 
ments in  carrying  on  the  business.  Amongst  the 
creditors  were  two  gentlemen  who  afterwards  blos- 
somed into  the  defendants  in  this  action.  They  sub- 
scribed and  executed  the  deed,  and  were  both  named 
as  trustees.  One  of  them  never  acted  at  all  ;  the 
other  acted  for  six  weeks  and  then  resigned.  The 
other  trustees,  however,  did  jix't,  and  did  the  best  they 
could  for  the  business.  In  the  carrving  on  of  the 
business  the  plaintilf  supplied  the  company  with  a 
quantity  of  iron-ore,  and  one  of  the  trustees  accepted 


152  LEADING    CASKS    8IMrLIFIED. 

bills  of  exchange  in  the  name  of  the  company  for  the 
price  of  it. 

The  question  was  whether  the  trustees  were  agents 
for  the  defendants  to  accept  the  bills,  and  it  was  held 
that  they  were  not;  on  the  ground  that  the  persons  for 
whose  benefit  the  business  was  carried  on  were  not  the 
creditors,  but  Messrs.  Smith  &  Co.  The  real  test  of 
partnership  lial)ility,  the  judge's  said,  was  not  partici- 
pation in  the  profits,  but  whether  the  trade  was  carried 
on  by  persons  acting  as  the  agents  of  the  persons 
soujrht  to  be  made  liable.^ 


1  Persons  may  be  partners  as  rei^ards  the  world  at  lar£?e,  al- 
thou^li  thej'  are  not  partners  as  between  themselves.  If  a  man 
holds  himself  out  as  a  partner  he  is  liable  to  a  person  who,  for  that 
reason,  gives  credit  to  the  Arm.  If  it  were  not  so,  there  would  be 
even  more  imposition  in  business  transactions  than  there  already 
is.  The  law  does  not  pi-escribe  any  particular  acts  which  shall  con- 
stitute a  "holding  out:  "  evidence  may  be  given  of  anything  the 
defendant  has  done  which  would  induce  others  to  believe  that  he 
was  a  partner,  such  acts  having  the  effect  of  an  estoppel  by  con- 
duct. As  to  the  other  point  of  these  cases,  it  was  for  a  long  time 
thought  that  if  it  could  be  proved  that  the  defendant  shared  the 
profits  he  was  thereby  proved  to  be  a  partner.  The  effect  of  the 
case  of  Cox  v.  Hickman  is  to  destroy  this  doctrine;  and  the  law 
now  is  that,  though  community  in  tlie  profits  is  strong  evidence  of 
partnership,  it  is  not  conclusive  evidence.  There  must  always  be  an 
examination  into  the  intention  of  the  contracting  parties. 


NEGOTIABLE   PAPER.  153 


X.  —  Negotiable  Paper. 


THE  REQUISITES    OF   A    PROMISSORY  NOTE. 


ItELLEY  V.  HEMMIXGWAY. 

[13  111.  11 ;  Big.  Ld.  Cas.  Bills  &  Notes  10.] 

HemmingWcay  sued  David  Kelley  on  the  following 
instrument :  — 

"  Castletox,  April,  27,  1844. 
"  Due  Henry  D.  Kelley,  $53  when  he  is  twenty-one 

years  old,  with  interest. 

' '  David  Kelley  . ' ' 

Which  Henry  D.  Kelley  had  assigned  to  him  hy  an 
indorsement  in  writing.  The  defendant  pleaded  that 
this  was  not  a  promissory  note,  which  was  a  very  vital 
question,  because,  if  it  were  not  a  promissory  note 
it  was  not  assignable  by  indorsement,  and  Hemming- 
way  had  no  right  to  l)ring  an  action  on  it  in  his  own 
name.  The  court  held  the  plea  good,  on  the  ground 
that  to  constitute  a  promissory  note  the  money  must 
be  payable  certainly,  and  not  dependent  on  any  con- 
tingency either  as  to  event,  the  fund  out  of  which  pay- 
ment is  to  be  made,  or  the  parties  by  or  to  whom 
payment  is  to  be  made.     A  promise  to  pay  a  sum  of 


154  LEADING    CASES    BIMPLIFIED. 

money  Avlicn  a  particular  person  is  married  is  not  a 
promissory  note  —  he  may  never  be  married.  So  of  a 
promise  to  pay  when  a  particuhir  shi[)  rc'turns  IVom 
sea  —  it  may  never  return.  Here  the  payment  was  to 
be  made  wlien  Henry  attained  his  majority,  but  that 
was  an  event  that  might  never  ha[)pen ;  it  was  not  cer- 
tain, but  simply  contingent  on  his  living  tliat  long. 
The  fact  that  he  did  live  till  he  was  twenty-one  made 
no  dillcrence.  It  was  not  a  good  promissory  note 
when  made,  and  it  could  not  become  so  ex  post  facto. 
If  the  event  was  sure  to  take  place  it  would  not  have 
mattei-ed  how  long  a  time  elapsed.  Therefore,  if  the 
instrument  had  been  payable  at  Henry's  death,  it 
would  have  been  a  good  promissory  note,  for  if  there 
is  one  thing  that  is  certain  it  is  death. 


TITLE  TO  BANK  NOTES. 


MILLER  V.  RACE. 

[1  Burr.  452;  1  Smith's  Ld.  Cas.  697.] 

On  a  dark  December  night  about  the  middle  of  the 
last  century,  the  mail  from  London  to  the  west  was 
attacked  by  highwaymen.  l\\  reply  to  the  usual 
question,  most  of  the  passengers  meekly  remarked 
that,  on  the  whole,  tiiey  valued  their  lives  more  than 
their  money,  and  the  knights  of  the  road  got  away 


NEGOTIABLE   PArKR.  155 

with  a  fair  bagful.  Amongst  other  things  taken  was 
a  ])ank-note  for  £21  10s.,  which  a  Mr.  Fiiuicy,  of 
London,  was  sending  down  by  the  general  post  to  a 
client  in  Oxfordshire.  The  next  day  the  news  of  the 
disaster  reached  the  ears  of  Mr.  Finney,  who  rushed 
off  in  wild  haste  to  the  bank  and  stopped  payment  of 
the  note.  Not  many  days  after  the  plaintiff,  who  had 
come  by  the  note  quite  honcstl3%  and  had  given  value 
for  it,  presented  it  at  the  bank ;  but  Mr.  Race,  one  of 
the  bank  clerks,  not  only  refused  to  cash  it,  but  even 
to  hand  it  back.  Miller,  therefore,  sued  him.  When 
the  case  came  before  the  Court  of  King's  Bench,  the 
defendant's  counsel  made  such  an  ingenious  argument 
that,  though  Chief  Justice  ^Mansfifld  had  no  doubt 
that  Mr.  Miller  ought  to  recover,  he  thought  it  proper 
to  look  into  the  case,  and  deferred  rendering  judgment 
for  a  week.  But  at  the  end  of  the  week  the  ingenious 
lawyer  was  floored.  The  court  was  unanimously  of 
opinion  that  property  in  a  bank-note  passes  like  cash 
by  delivery,  and  a  party  taking  one  bona  fide  and  for 
value,  is  entitled  to  retain  it  as  against  a  person  from 
whom  it  has  been  stolen. 


WHO  IS  A   ''HOLDER  FOR  VALUE.'' 


SWIFT  V.  TYSOX. 

[IG  Pet.  1 ;  Big.  Lrt.  Cas.  Bills  &  Notes,  486.] 

Swift  held  Norton  &  Keith's  note.     They  on   the 
other  lumd  had  a  bill  of  exchange  accepted  l)y  Tyson, 


156  LEADING    CASES    SIMl'LIFIED. 

and  with  this    they  paid   their  note  to    Swift.     It   is 
doubtful  if  Tyson  Avould  ever  have  been  compelled  to 
pay  the  amount  of  this  bill  to  Norton  &  Keith,  for  they 
had  induced   him  to  accept  it  by   a  lot  of  false    and. 
fraudulent  representations  about  some  lands  in  Maine, 
to  which  they  had  no  title  ;  but  Swift  knew  nothinsr, 
about  those  frauds,  and  he  took  the  bill   of  exchange 
before  it  was   due.     But  this   did  not  console  Tyson, 
who  when  Swift  sued  him  on  it,  pleaded  the  rascality 
of  Norton  &  Keith.     But  the   Supreme  Court  of  the 
United    States     decided    the     case     for   the    plaintiff. 
'*  There  is  no  doubt,"  said  Judge  Story,  in  one  of  the 
ablest  judgments  of  that  great  jurist,    "  that  a  bona 
fide  holder  of  a  negotiable  instrument  for  a  valuable 
consideration  without    any  notice   of  facts  w^hich  im- 
peach its  validity  as  between  the  antecedent  parties, 
if  he  takes  it  under  an  indorsement  made   before  the 
same  becomes  due,  holds  the  title  unaffected  by  these 
facts  and  may  recover  thereon,  although  as  between 
the  antecedent  parties  the  transaction  may  be  without 
any  legal  validity.     This  is  a  doctrine  so  long  and  so 
well  estal)lished,  and  so  essential  to  the  security  of  ne- 
gotiai)le  paper  that  it  is  laid  up  among  the  fundamen- 
tals of  the  law,  and  requires  no  authority  or  reasoning 
to   l)e   now  brought   in  its   support."       The  question 
then  was  whether  a  pre-existing  debt  was  a  sutBcient 
consideration  to  shut  out  the  equities  of  the  original 
parties  under  this  rule.     The  court  held  that  it  was, 
and   that  Swift's  title  was  not  aHected  by  what  had 
taken  place  between  Tyson  and  Norton  &  Keith. ^ 


It  is  necessary  to  say  here  that  the  qnestLon  decided  in  this 
case  is  one  of  those  questions  upon  which  entirely  contrary  views 


NEGOTIABLE    PAPER.  157 

NOTICE  OF  DTS HONOR,  WHEN  NECESSARY. 


BICItEllDIKE   V.  BOLL]>IAX. 

[1  Terra  Rep.  405;  2  Smith's  Ld.  Cas.  54.] 

The  bottom  facts  of  this  case,  (the  iiarnitivo  of  which 
is  too  complicated  to  be  worth  detailing)  are  as  fol- 
lows :  Spendfast  being  hard  up  for  money,  ;iud  know- 
mg  the  weak  good-nature  of  his  friend  Lighthcad, 
asks  him  to  accept  a  bill  of  exchange  for  him,  nssnring 
him  that  he  wnll  never  be  called  on  to  pay  it,  and 
that  it  is  really  only  a  formalit3^  Lighthead  consents, 
and  though  he  gets  no  consideration  whatever  for  it, 
accepts  a  l)ill  drawn  on  him  by  Spendfast.  The  bill 
finally  gets  into  the  hands  of  Thriftman  as  holder,  and 
he  presents  it  to  Lighthead  for  payment.  Lighthead, 
of  course,  dishonors  the  bill,  and  uses  strong  language. 
Such  being  the  state  of  the  parties,  Bicherdike  v.  Boll- 
man  decides  that  Thriftman,  the  holder,  can  sue 
Spendfast,  the  drawer,  without  having  previously 
given  him  notice  that  Light  head,  the  acceptor,  has 
dishonored  the  bill,  the  reason  being  that  the  drawer 
never  had  any  effects  in  the  hands  of  the  drawee,  and 
therefore  could  not  lose  any  tiling  by  notice  not  being 


are  held  by  different  courts.  In  New  York  and  a  few  States  which 
follow  the  New  York  rule,  Swift  v  Tyson  is  not  regardcil  as  correct 
law  on  what  constitutes  a  holding  for  value,  while  in  the  Federal 
courts,  and  in  most  of  the  State  courts,  the  doctrine  of  Swift  v. 
Tyson  is  affirmed  and  followed.  See  Big.  Ld.  Cas.  Bills  &  Notes, 
497,  et  seq. 


158  LEADING    CASES    SIMPLIFIED . 

given  Mm.  "  The  l:iw  requires  notice  to  be  given," 
said  BuLLER,  J.,  "  for  this  reason,  viz.  :  because  it  is 
presumed  that  the  bill  is  drawn  on  account  of  the 
drawee's  having  effects  of  the  drawer  in  his  hands; 
and  if  the  latter  has  notice  that  the  bill  is  not  ac- 
cepted or  not  paid,  he  may  withdraw  them  immedi- 
atelv.  But  if  he  have  no  effects  in  the  other's  hands 
then  he  cannot  be  injured  for  want  of  notice." 

Bickerdihe  v.  Bollman  is  still  recognized  both  in 
America  and  England  as  the  leading  case  on  this  sub- 
ject. Later  adjudications,  however,  without  attempting 
to  overrule  it,  do  not  nnike  the  right  to  notice  depend 
upon  the  fact  that  the  drawee  had  at  the  maturity  of 
the  bill,  funds  in  his  hands  of  the  drawer,  adequate  to 
its  payment.  On  the  contrary  the  criterion  is  :  had 
the  drawer  reasonable  grounds  to  expect  that  the  bill 
would  be  honored  ?  ^ 


XmAUTHORIZED   ALTERATIONS   VITIATE   THE 
INSTRUMENT. 


IMASTER  V.   MELLER. 

[4  Term  Rep.  320;  2  H.  Black.  140;  1  Smith's  Ld.  Cas.  935.] 

We  are  not  in  a  position  to   state  whether  the  Mr. 
Miller  who  was  defendant  in  this  action   was  the  same 


1  SeeHopkirk  v.  Page,  2  Brock.  20;  Big.  Ld.  Cas.  Bill  &  Notes, 
110. 


NEGOTIABLE   PAPER.  159 

Mr.  Milieu-  who  took  tlio  bank-note  from  tlio  robber, 
and  liad  a  [)as.sa<j:o  of  anus  with  Mr.  Race,  of  the  l)ank  of 
EnMaiid.  If  so,  he  is  one  of  the  mo.st  fortunate  liti- 
gants of  whom  there  is  any  record.  In  the  former 
case,  it  will  be  remembered,  he  was  a  plaintilf,  suing 
on  a  stolen  bank-note.  Ho  now  appears  in  the  hum- 
bler capacity  of  defendant,  having  accepted  a  bill  of 
exchange,  and  resisting  payment,  on  the  ground  that 
it  has  been  altered  since  acceptance.  It  isn't  the  same 
bill,  he  says,  and  he  won't  haye  anything  to  do  with  it. 
The  history  of  the  transaction  is  this.  On  March 
2(>,  1788,  PcH'l  &  Co.,  of  Manchester,  drew  a  ])ill  for 
£1,000  on  INIiller,  payable  three  months  after  date  to 
Wilkinson  &  Cooke.  This  bill  they  deliyercd  to  Wil- 
kinson &  Ca)okc,  and  Miller  afterwards  accepted  it. 
Wilkinson  &  Cooke  then  indorsed  it  for  value  to  the 
pl:iinti!T.  r>nt,  before  doing  so,  they  quietly  made  one 
or  two  litth^  alterations,  Avith  the  object  of  ini[)roying 
the  document.  March  2(Uli,  they  changed  into  March 
20th  ;  and  they  stuck  June  23rd  at  the  top  to  indicate 
that  the  bill  would  become  due  on  that  day.  These 
alterations,  1)eing  to  accelerate  payment  and  unauthor- 
ized, were  hehl  to  vitiate  the  instrument.  "  When  it  is 
admitted,"  said  Chief  Justice  Eyre,  "  that  the  altera- 
tion of  a  deed  would  vitiate  it,  the  point  seems  to  me 
to  be  concluded.  *  *  *  If  courts  of  justice  were 
not  to  insist  on  bills  being  strictly  and  faithfully  kept, 
alterations  in  them  highly  dangerous  might  take  place, 
such  as  the  addition  of  a  cipher  in  a  bill  for  £100,  by 
which  the  sum  might  be  changed  to  £1,000,  and  the 
holder  having  failed  in  attemptingto  recoverthe  £1,000, 
misrht  afterwards  take  his  chance  of  recovering  the 
£100  as  the  bill  originally  stood.  But  such  a  proceed- 
ing would  be  intolerable." 


IGO  LEADING    CASES    SIMPLIFIED. 

NEGLIGENCE  IN  DBA  WING  CHECK. 


YOUNG  V.    GROTE. 

[4  Bing.  253.] 

Mr.  Young  was  a  rash  but  liberal  liusl)an(l.  When 
he  went  away  from  homo  he  used  to  leave  bhuik  checks 
siirned  for  Mrs.  Young  to  fill  up  according  to  her  ne- 
cessilics.  On  one  of  these  occasions  she  re(iucsted 
her  husband's  clerk  to  fill  out  a  check  for  the  sum  of 
£50  and  2s.  The  clerk  did  so,  writing  the  "  fifty" 
with  a  small  letter  in  the  middle  of  the  line,  and  put- 
tino-  the  figures  50,  2s  a  good  distance  to  the  right 
of  the  printed  £.  He  showed  it  to  her,  and  she  told 
him  to  ffo  and  draw  the  money  from  the  bank.  He 
went ;  but  he  stopped  long  enough  on  his  way  to  in- 
sert at  the  beginning  of  the  lino  in  which  the  word 
*'  fifty  "  was  written,  the  words  '<  three  hundred  and  " 
and  he  deftly  placed  the  figure  3  between  the  £,  and 
the  50.  He  had  now  a  check  for  £350  2s,  which  the 
bank  ])aid  without  suspicion,  and  £300  of  which  he 
pocketed.  Then  Mr.  Young  tried  to  throw  the  loss  on 
the  bank  ])ut  he  did  not  succeed,  for  this  was  the  judg- 
ment of  the  court:  *«  A  banker  who  pays  a  forged 
check  is  in  general  bound  to  pay  the  amount  again  to 
his  customer,  because  ho  pays  without  authority,  and 
it  is  his  duty  to  be  acquainted  with  his  customer's  hand- 
writing. *  *  *  Yet  if  it  bo  the  fault  of  the  cus- 
tomer that  the  banker  pays  more  than  he  ought,  he 
cannot  be  called  on  to  pay  again.     *     *     *     Here  the 


XECOTIAHLH    TAPER.  101 

bliimc  was  all  on  oik;  .side,  and  Youno;  must  sufTor  for 
his  own  negligence."  Chief  Justice  Bkst  suggested 
two  maxims  which,  if  Mr  Young  had  only  known  in 
time,  would  have  saved  him  a  good  many  hundred 
dollars.  First,  always  Avrite  your  checks  well  to  the 
left  side  ;  second,  never  let  your  wife  have  anything  to 
do  with  your  check  book. 


STOPPAGE    IX    TRANSITU. 


LICKBARIIOW  V.  MASOX. 

[2  Term  Eep.  C3;   1  Smith's  Ld.  Cas.  849.] 

The  originator  of  this  litigation  was  one  Freeman, 
ofEotterdam,  who  had  the  audacity  to  become  bank- 
rupt and  confound  the  transactions  of  a  great  manv 
honest  people.  The  dramatis  j)ersonce  are  somewhat 
numerous,  but  the  student  will  probably  find  the  fol- 
lowing account  reasonably  clear  and  correct. 

Freeman  sent  an  order  to  Messrs.  Turings,  of  Mid- 
dleburg,  to  ship  a  quantity  of  corn  to  Liverpool.  This 
order  Messrs.  Turings  were  rash  enough  to  execute  ;  for 
they  then  considered  Freeman  to  be,  if  not  "  the  richest 
merchant  in  Eotterdam,"  at  all  events,  a  safe  and  sol- 
vent person.  On  July  22,  178G,  Messrs.  Turings  put 
the  corn  on  board  the  ship  Endeavour,  whereof  the- 


162  LEADING   CASES   SIMPLIFIED. 

muster  was  a  Mr.  Holmes.  It  is  the  duty  of  a  master 
when  he  sets  out  on  a  voyage  like  this  to  sign  bills  of 
lading,  by  way  of  acknowledging  that  he  has  got  the 
goods  on  }>oard.  Holmes  signed  four  of  these  bills  of 
lading  (usually,  it  may  bo  remarked,  only  three  are 
signed)  ;  and  of  the  four,  one  he  pocketed,  two  were 
indorsed  in  blank  by  Turings  &  Co.  and  sent  to  Free- 
man with  an  invoice  of  the  goods  shipped,  and  the 
fourth  was  retained  by  Messrs.  Turings. 

The  sound  ship,  Endeavour,  had  not  set  sail  very 
long  when  tidings  came  to  the  ears  of  the  Turuigs  that 
Freeman  had  become  bankrupt.  Rising  to  the  occa- 
sion, they  immediately  sent  off  the  bill  of  lading  that 
remained  in  their  custody  to  Messrs.  Mason  &  Co.,  of 
Liverpool,  with  a  special  indorsement  to  deliver  the 
corn  to  them  for  Messrs.  Turings'  benefit.  Pursuant 
to  this  special  indorsement  Mr.  Holmes,  when  he  ar- 
rived !it  Liverpool,  delivered  his  cargo  to  the  Masons. 
Li  the  meantime,  however,  and  before  he  became 
bankrupt.  Freeman  had  sent  his  two  bills  of  lading  to 
Messrs.  Lickbarrow  duly  negotiated  for  a  valuable 
consideration.  Messrs.  Lickbarrow,  therefore,  were 
anything  but  pleased  to  find  that  Mason  &  Co.  had  got 
hold  of  the  corn,  and  they  brought  this  action  to  try 
and  make  them  give  it  up.  In  this  they  were  success- 
ful. Judgment  was  given  for  the  plaintiffs,  on  the 
ground  that  Sibona  Jide  assignment  of  the  bills  of  lad- 
in"^  defeats  the  vendor's  right  to  stop  in  transitu} 


I  The  first  rule  laid  down  in  this  case  is  to  this  effect :  — 

When  a  man  becomes  bankrupt  his  goods  are  divided  amongst  his 

creditors,  nobody  getting  the  full  amount  that  is  due  to  him,  but 

everybody  getting  a  proportion  of  it.     Thus,  the  person  who  has 

■most  recently  been  rash  enough  to  intrust  the  trader  wiiii  guuds  on 


NEGOTIABLE    PAPER.  163 


STATUTE  OF  LIMITATIONS. 


WHITCOMB  V.  WHITING. 

[Dougl.  G52;  1  Smith's  Ld.  Cas.  703.] 

Whiting  and  Jones  made  a  joint  and  several  promis- 
sory note,  which  in  the  course  of  time  camo  into  the 
hands  of  the  plahitilf.  Eight  or  ten  3'ears  after  the 
day  on  which  it  was  made,  the  plaintiff  sued  Whiting, 
wlio  had  h)ng  ago    forgotten    his    little    undertakinff. 


credit  is  the  most  to  be  pitied,  for  what  was  5-esterday  all  his  own, 
Is  to-day  part  of  the  general  fund  from  which  each  creditor  derives 
the  proportion  of  Ids  debt.  To  prevent  this  injustice  of  one  man's 
goods  being  used  to  pay  another  man's  debts,  tlie  doctrine  of  stoppage 
in  transitu  is  introduced.  Therefore,  although  the  vendor  has  sent 
off  his  goods,  and  parted  with  the  property  in  them,  to  the  vendee 
on  a  credit  sale,  he  may,  nevertheless,  on  hearing  of  that  gentle- 
man's bankruptcy  or  general  inability  to  pay  his  debts,  stop  the 
goods  and  retake  possession  of  them  at  any  time  while  they  are  on 
their  journey  to  him,  and  have  not  come  into  his  actual  possession. 
The  riglit  to  stop  is  personal  to  the  vendor  or  consignor.  It  cannot, 
for  example,  be  exercised  by  a  surety  for  the  price  of  the  goods. 
But  the  vendor  may,  at  any  time  before  the  transitns  has  ended, 
ratify  the  act  of  a  stranger  who  stops  the  goods.  The  great  ques- 
tion i'.i  most  stoppage  in  transitu  cases  is,  was  the  journey  at  an  end 
or  not?  The  goods  are  on  the  journey  as  long  as  they  are  in  the 
hands  of  the  carrier  as  such;  but  the  carrier  may  hold  them  as  bailee 
for  t'.ie  vendee,  as  when  the  latter  pays  him  a  rent  for  warehous- 
ing t'.iein. 

Tlie  second  rule  in  this  case  is,  that  if,  while  the  goods  are  in 
transitu,  the  vendee  indorses  the  bill  of  lading  (as  Freeman  did)  to 
a  person  wlio  takes  it  in  the  ordinary  way  of  business  and  in  per- 
fect good  faith,  the  vendor's  right  to  stop  is  at  an  end.  Shirley  Ld. 
Cas.  8G, 


164  LEADING    CASES    SIMrLIFIED. 

"Yes,"  said  Whiting,  "that  certainly  must  be  my 
signature,  and,  now  you  come  to  mention  it,  I  do  re- 
member sonietliing  about  a  promissory  note.  But, 
you  see,  the  date  of  that  note  is  more  than  six  years 
ago;  so  I  have  the  law  on  you."  "That's  all  very 
fine,  Mr.  Whiting,"  replied  the  holder  with  a  chuckle, 
"  but  you  may  be  interested  to  learn  that  Mr.  Jones, 
the  gentleman  whose  name  is  with  yours  on  this  l)it  of 
paper,  has  paid  interest  on  it  within  the  last  six  years  ; 
and,  if  I'm  not  pretty  well  mistaken,  that  takes  it  out 
of  the  statute  as  against  you  as  well  as  against  him.'^ 
And  so  it  proved.  "  Payment  by  one,"  said  Lord 
Mansfield,  C.  J.,  "  is  payment  for  all,  the  one  acting 
virtually  as  agent  for  the  rest,  and  in  the  same  manner 
an  admission  by  one  is  an  admission  by  all."  "  The 
defendant,"  said  Willbs,  J.,  "  has  had  the  advantage 
of  the  partial  payment,  and  therefore  must  be  bound 
by  it."  In  expUuuition  of  this  last  remark  it  may  be 
suggested  that  probably  all  the  ten  years  Jones  was 
punctually  paying  the  interest,  so  that  Whitcomb  had 
no  desire  to  enforce  payment  of  the  principal.  Then 
Jones  suddenly  foundered  in  the  ocean  of  insolvency, 
and  it  became  necessary  to  see  whether  the  other  joint 
contractor  was  any  good. 


liANDLOUD   AND   TENANT.  165 


XI.  —  La^odloed  a^td  Tenant. 


PAYING    BENT   FOE    DESTROYED    PREMISES. 


ILVLLETT  v.  AVYLLE. 

[3  Jolms.  4-i ;  3  Am.  Dec.  457.] 

Mr.  Hullett  leased  a  house  from  Mr.  Wylie  for  the 
term  of  four  years.  The  lease  provided  that  the  rent 
should  1)0  paid  quarterly,  and  that  the  tenant  should 
pay  all  taxes  and  assessments  and  keep  the  inside  of 
the  house  in  good  order.  Mr.  Hallett  took  up  his 
abode  in  his  new  quarters,  and  was  very  well  satisfied 
until  one  day  in  Doeomber,  barely  nine  months  after 
he  had  taken  possession,  the  house  was  burned  down, 
and  he  had  to  rent  another  one.  The  landlord  waited 
a  year,  and  then  sued  Mr.  Hallett  for  four  quarters' 
rent,  to  which  that  gentleman  replied  that  he  had  paid 
his  rent  promptly  as  long  as  the  house  stood,  but  he 
would  be  blest  if  he  would  pay  rent  after  that  time. 
"  No  house,  no  rent,"  was  his  motto.  This  certainly 
appeared  just,  but  AVylie,  who  was  something  of  a 
Scrooge,  went  to  law  about  it,  and,  we  regret  to  say, 
was  successful.  The  court  gave  the  tenant  their  sym- 
pathy and  the  landlord  his  money. 

*'  This  is  a  hard  case  upon  the  defendant,"  they  said. 


IGC  LKADING    CASES    SIMPLIFIED. 

<'  aiul  if  the  court  could,  consistently  with  settled  and 
established  principles,  relieve  him  against  the  pa}'raent 
of  the  rent  in  question,  we  should  most  willingly  do  it. 
But  it  can  not  be  done  without  overturning  a  series  of 
decisions  to  which  this  court  is  bound  to  conform. 
We  sit  here  '-jus  dare,'  not  'jus  facere.'^  We  think 
it  may  safely  be  said  that  there  is  not  a  case  in  the 
books  where  the  destruction  of  the  demised  premises 
by  fire  has  been  held  to  excuse  the  tenant  from  the 
payment  of  the  rent  on  an  express  covenant  ;  but  in 
every  case  where  a  defence  on  that  ground  has  been 
attempted,  it  has  failed.  The  law  on  this  point  has, 
in  one  of  the  bite  cases  in  England,  l)cen  considered 
so  fully  established  that  the  court  would  not  even  hear 
an  argument  respecting  it." 

INIoiiAL :  When  3^ou  sign  a  lease  of  a  house,  don't 
forget  to  have  it  provide  that,  in  case  the  building 
is  burned  down,  or  rendered  uninhabitable,  the  rent 
shall  cease  to  bo  payable. 


NO  WARRANTY  AS  TO  CONDITION  OF 
PREMISES. 


CLEYES  V.   WILLOUGHBY. 

[7  Hill,  83.] 

The  dwelling  No.  3,  Linden  Row,  Brooklyn,  was  for 
rent,  and  Mr.  Cleves,  who  was  hunting  for  a  house, 


'  "To  announce  the  law,  not  to  manufacture  it." 


LANBI.OKI)  AND  TENANT.  1G7 

len '-cd  it  for  five  years  at  a  yearly  rent  of  $300,  pay- 
able quarterh'.  He  was  in  such  a  hurry  to  get  them 
that  he  "was  not  particular  to  cxamiue  the  premises. 
After  the  lea.se  was  siirned  and  he  was  prepared 
to  ir.ove  in,  he  found  that  it  was  not  what  ono 
would  wish  for  a  residence.  The  house  was  in  horri- 
bly bad  repair,  the  cistern  leak(ul,  the  cellars  were  filthy 
and  f;)ul  —  in  fact  it  was  not  a  place  to  take  a  fam- 
ily into  at  all.  Mr.  Cleves  suggested  to  the  hindlord 
that,  unless  he  would  repair  and  clean  it  up,  he  would 
not  move  in.  This  t!;o  hindlord  refused  to  do,  so 
Mr.  Clevos  rented  and  occupied  another  house.  At 
the  end  of  three  months  there  came  a  bill  for  a  quar- 
ter's rent  of  No.  3,  Linden  Row,  which  Mr.  Cleves, 
very  n.iturally,  refused  to  pay.  Then  the  case  came 
into  court,  and  ]\Ir.  Cleves'  only  plea  was  that  the 
house  was  unfit  for  occupation.  But  the  court  re- 
fused to  listen  to  it.  They  held  that  there  was  no  im- 
plied warranty  on  the  part  of  the  lessor  of  a  dwelling- 
house,  that  it  is  fit  for  habitation.  "  It  is  quite 
unnecessary,"  said  Beardsley,  J.,  "to  look  at  the 
common-law  doctrine  as  to  implied  covenants  and  war- 
ranties, or  its  modification  by  statute.  That  doctrine 
has  reference  to  the  title  and  not  to  the  quality  or  con- 
dition of  the  property.  The  maxim  caveat  emptor  (let 
the  purchaser  beware)  applies  to  the  transfer  of  all 
propcrt}'',  real,  personal  and  mixed,  and  the  purchaser 
takes  the  risk  of  its  quality  and  condition,  unless  he 
protects  himself  by  an  express  agreement  on  the  sub- 
ject." 


168  LEADING    CASES    SOIPLIFIED. 


EXCEPT  IT  IS  A  FURNISHED  HOUSE. 


SMITH  V.  ]>IAKKABLE. 

[11  Mee.  &W.  5.] 

Brighton  is  a  fiisliionable  English  watering-place, 
and  Sir  Thomas  IMarrablc,  who  wished  to  spend  the 
season  there  with  his  family,  rented  a  furnished  house 
of  Ml-.  John  Smith,  for  a  certain  term.  The  student 
will  note  that  it  was  a  famished  house  he  rented. 
On  the  IGth  of  September  the  Marrable  family  moved 
in.  Three  days  later  Mrs.  John  Smith  received  the 
following  billet :  — 

"  5  Brunswick  Place,  September  19,  1842. 

*'  Lady  Marral)le  informs  Mrs.  Smith  that  it  is  her  de- 
termination to  leave  the  house  in  Brunswick  Place  as 
soon  as  she  can  take  another,  paying  a  week's  rent,  as 
all  the  bedrooms  occupied  but  one  are  so  infested  with 
bugs  that  it  is  impossible  to  remain." 

The  landlord  sent  a  man  to  drive  the  bugs  out,  but 
there  were  too  many  for  him  and  the  family  did  leave 
as  threatened.  This  was  Mr.  John  Smith's  action  for 
the  rent  under  his  agreement  with  Sir  Thomas.  The 
jury  having  found  that  the  bugs  were  the  real  cause  of 
the  moving  out,  the  Court  of  Exchequer  decided  that 
they  did  the  proper  thing  and  Mr.  John  Smith  was 
defeated.  "  A  man  who  lets  a  ready  furnished 
house,"  said  Lord  Abinger,  C.  J.,  "  docs  so  under  the 
implied   condition  or    obligation  —  call  it    what   you 


LANDLORD    AND   TENANT.  109 

will  —  that  the  house  is  in  a  fit  state  to  be  inhabited. 
Suppose,  instead  of  the  particular  nuisance  which 
existed  in  this  case,  the  tenant  discovered  the  fact, 
unknown,  perhaps,  to  the  landlord,  that  lodgers  had 
previously  quitted  the  house  in  consequence  of  having 
ascertained  that  a  person  had  recently  died  in  it  of 
plague  or  scarlet  fever,  would  not  the  law  imply  that 
he  ought  not  to  stay  in  it?  I  entertain  no  doubt  what- 
ever on  the  subject,  and  think  the  defendant  Avas  fully 
justified  in  leaving  these  premises  as  he  did  ;  indeed,  I 
only  wonder  that  he  remained  so  long,  and  gave  the 
landlord  so  much  opportunity  of  remedying  the  evil."  ^ 


EFFECT  ON  TENANT  OF  MORTGAGE  BY  LAND- 
LORD. 


KEECH  V.  HALL. 

[1  Dougl.  21;  1  Smith's  Ld.  Cas.  65-t.] 

The  owner  of  a  warehouse  in  the  city  of  London, 
moitjiaircd  it  to  Mr.  Keech,  but  remained  in  posses- 
sion .  Soon  afterwards,  without  saying  a  word  to  Keech 
on  the  subject,  he  leased  it  for  seven   years   to  Hall. 


1  The  principle  of  this  case  was  expressly  aflarraed  in  tho  late 
case  of  Wilson  v.  Finch  Ilatton,  2  Exch.  Div.  336,  where  the  tenant 
of  a  furnished  house  was  held  to  be  justified  in  leaving  on  account 
of  defective  drainage.     And  see  Button  r.  Gerrich,  9  Cush.  80. 


170  LEADING    CASES   SIMPLIl-IED. 

Keooh  was  very  iiulignaiit  at  this.  He  said  the  mort- 
gagor had  exceeded  his  rights,  having  no  ])usiness  to 
do  siicli  a  thing  -without  consulting  him,  and  that  Hall 
was  no  better  than  a  trespasser,  and  couhl  be  ejected 
without  notice.  And  the  judges  coincided  with  his 
view  of  the  matter.  At  first  sight  the  tender-hearted 
student  may  think  this  a  little  rough  on  Hall ;  but  it  is 
not  really  so  ;  for  if  the  man  had  taken  the  trouble  to 
make  proper  inquiry  he  would  soon  have  discovered 
that  the  person  he  was  dealing  with  was  only  a  mort- 
gagor, and  therefore  that  it  would  be  a  risky  thing  to 
take  a  lease  from  him. 


MOSS    v.    GALLIMORE. 

[1  Dougl.  279;  1  Smith's  Ld.  Cas.  G89.] 

Mr.  Harrison  began  the  year  1772  by  letting  a  house 
to  Moss  for  twenty  years  at  the  rent  of  £40  a  year. 
Times  were  bad  with  Mr.  Harrison,  and  in  i\Iay  of  the 
same  3'ear  he  mortgaged  the  property  to  a  Mrs.  Galli- 
more,  a  nice  old  lady,  who  wanted  eligilde  security 
for  the  little  fortune  which  her  late  husband  had  left 
her.  Moss  was  not  in  the  least  affected  b}^  this  mort- 
gage of  the  reversion.  He  went  on  quietly  living  in 
the  house,  and  paid  Harrison  his  rent  pretty  regularly 
up  to  November,  1778,  when  he  was  £28  behindhand. 
At  that  time,  Harrison,  having  sunk  deeper  and 
deeper  into  the   mire,  became  bankrupt,  being  at  the 


LANDLORD    AND   TENANT.  171 

time  indebted  to  Mrs.  Gallimore  for  interest  on  the 
mortgage  in  a  sum  greater  than  £28.  Mrs.  Gallimore 
gave  Moss  notice  of  her  being  mortgagee  ,and  told  him 
to  pay  to  her  the  £28  which  he  unqnestional)ly  owed 
to  somebody.  Moss  showed  no  di.s[)osition  to  yield  to 
this  demand,  and  finally  the  old  lady  made  a  raid  upon 
his  chairs,  tables,  grandfather's  clocks,  etc.  This  dis- 
traint Moss  considered  a  trespass,  and  brought  this 
action  accordingly.  It  was  held,  however,  that  the 
worthy  Mrs.  Gallimore  was  quite  justified  in  distrain- 
ing, for  a  mortgagee,  after  giving  notice  of  the  mort- 
gage to  a  tenant  in  possession  under  a  lease  prior  to 
the  mortgage,  is  entitled  to  the  rent  in  arrear  at  the 
time  of  the  notice  as  well  as  to  what  accrues  after- 
wards, and  he  may  distrain  for  it  after  such  notice. 


USAGES  AND  CUSTOMS. 


WIGGLES  WORTH  v.   DAL.LISOX. 

[Dougl.  201;  1  Smith's  Ld.  Cas.  900;  Lawson,  Us.  &  C.  169.] 

Wigglesworth  was,  as  his  bucolic  name  alone  might 
show,  a  farmer.  By  lease  dated  March  2,  1753,  one  of 
the  Dallison  family  let  him  have  a  field  in  Lincolnshire 
for  twenty-one  years.  In  the  last  year  of  his  tenancy, 
though  he  knew  that  he  had  to  give  up  the  land  almost 


172  LEADING    CASES    SIMPLIFIED. 

iminediiitely,  he  sowed  his  field  with  corn.  In  doing 
what  might  seem  at  first  sight  a  rash  and  improvident 
act,  Mr.  Wigglesworth  was  relying  on  a  certain  local 
custom,  which  entitled  an  outgoing  tenant  of  lands  to 
his  way-going  crop,  that  is,  to  the  corn  left  standing 
and  growing  at  the  expiration  of  the  lease.  Dallison's 
answer  to  tliis  claim  was  that,  if  any  such  custom 
existed  at  all,  it  had  no  application  to  the  present  case 
where  the  terms  between  landlord  and  tenant  had  beea 
carefully  drawn  up  in  a  lease  by  deed,  and  no  mention 
made  therein  of  any  custom.  The  court,  however,  de- 
cided in  favor  of  the  custom,  Lord  Mansfield  remark- 
in^thal ,  while  it  was  just  and  reasonable  and  for  the  de- 
benefit  of  agriculture  thut  he  who  sows  shall  reap,  it 
did  not  alter  or  contradict  the  agreement  in  the  lease, 
but  only  superadded  a  right. 


LEASES  FOR  MORE  THAN  THREE  YEARS .^ 


RIGGE  V.  BELL. 

[5  Term  Eep.  471;  2  Smith's  Ld.  Cas.  177. J 

By  parol  merely,  Rigge  let  a  farm  in  Yorkshire  to 


1  Our  friend,  the  Statute  of  Frauds,  comes  to  the  front  again  to 
regulate  dealings  inland  as  well  as  in  "goods,  wares,  and  merchan- 
dise." By  the  first  section  of  tliat  important  law,  it  was  enacted 
that  (with  the  exception  of  leases  for  a  term  not  exceeding  three 
years)  all  leases  of  lauds,  tenements  and  hereditaments  not  put  in 
writing  and  signed  by  the  parties  or  their  agents,  should  have  only 
the  force  and  effect  of  leases  at  will. 


LANDLORD  AND  TENANT.  173 

Bell  for  seven  years,  and  Bell  entered  and  paid  rent. 
But  the  tenant  did  not  give  satisfaction,  and  Rigge  de- 
termined to  get  rid  of  him.  By  the  terms  of  the 
agreement  Bell  was  to  go  out  at  Candlemas  ;  but 
Riggc's  view  was,  as  the  lease,  being  for  more  than 
three  years,  and  yet  not  in  writing,  as  the  Statute  of 
Frauds  required,  operated  merely  as  a  tenancy  at 
will,  ho  could  make  the  man  quit  when  he  pleased, 
and  was  not  bound  by  the  terms  they  had  agreed  on. 
In  this  view  ho  found  himself  mistaken,  for  it  was  held, 
that  "  though  the  agreement  bo  void  by  the  Statute  of 
Frauds  as  to  the  duralion  of  the  lease,  it  must  vprjiilate 
the  terms  on  lohich  the  tenancy  subsists  in  other  respects j 
as  to  the  rent,  the  time  of  the  year  when  the  tenant  is 
to  quit,"  etc. 


CLAYTOK  V.  BLAKEY. 

[8  Term  Rep.  3;  2  Smith's  Ld.  Cas.  ISO.] 

Also  by  parol  merely,  Mr.  Clayton  let  Blakey  some 
land  for  twenty-one  years,  and  Blakey  entered  and 
paid  rent.  Two  or  three  j^ears  afterwards  his  land- 
lord gave  him  notice  to  quit,  and,  as  ho  treated  such 
notice  with  supreme  contempt,  sued  him  for  double 
rent  for  holding  over.  To  this  claim  Blakey  raised 
the  somewhat  cool  defence  that  (by  virtue  of  sect.  1  of 
the  Statute  of  Frauds,  which  directs  that  any  lease  for 
more  than  three  years,  not  reduced  into  writing,  shall 


174  LEADING   CASES    SIMPLIFIED. 

operate  only  Jis  a  tenancy  at  will)  he  was  only  a  ten- 
ant at  will,  and  onght  to  have  been  so  described  in  the 
plaintiff's  declaration.  It  was  held,  however,  that 
Blakcy  was  not  a  tenant  at  will,  but  a  yearly  tenant, 
and  therefore  the  plaintiff's  pleading  was  good  enough 
to  hit  him. 

This  decision  seems,  at  first  sight,  rather  extraordin- 
ary. The  Statute  of  Frauds  distinctly  says,  that  all 
leases  by  parol  for  more  than  three  years,  shall  be  ten- 
ancies at  will  only.  The  decision  intervenes  and  says  : 
*'  No,  they  shall  be  yearly  tenancies,"  thus  putting  the 
tenant  in  abetter  position  than  the  statute  left  him  in. 
The  accepted  explanation  is  that  the  statute's  inten- 
tion was  that  the  estate  should  be  an  estate  at  will  to 
begin  with,  but  that  when  once  created,  it  should  be 
liable,  like  any  other  estate  at  will,  to  be  changed  into 
a  tenancy  from  year  to  year  by  payment  of  rent,  or 
anything  showing  an  intention  to  create  a  yearly  ten- 
ancy. But  if  there  were  no  circumstances  showing 
such  intention,  the  estate  would  remain  an  estate  at 
will. 


AGRICULTURAL  FIXTURES. 


EL  WES  V.  ]\IATVE. 

[3  East,  38 ;  2  Smith's  Ld.  Cas.  228.] 

Toward  the  close  of  the  last  century,  Elwes  let  a 
farm  at  Bigby  in  Lincolnshire  to  Mawe  for  twenty-one 


LANDLORD    AND    TKNANT.  175 

years  ;  and  during  liis  tenancy  Mawo  conceived  and 
carried  out  various  improvements  for  the  more  profita- 
ble occupation  of  the  land.  He  built  a  beast-liouse,  a 
carpenter's-house,  and  a  pigeon-house,  among  other 
things.  By-and-by  tlio  twenty-one  years  came  to  an 
end,  and  the  time  came  for  ?Ia\ve  to  go.  A  few  days 
before  leaving,  he  set  his  laborers  to  work  to  pull  down 
the  beast-house,  and  the  cai-penter's-housc,  and  the 
pigeon-house  and  whatever  else  ho  had  erected,  and 
carted  them  all  away,  leaving  the  premises  in  just  the 
same  nude  condition  they  were  when  be  entered.  When 
Elwcs  heard  of  this  he  was  very  angry.  He  said 
Mawo  had  no  right  whatever  to  take  away  fixtures,  it 
was  flat  burglary  and  so  on,  and  finally  he  brought  an 
action  for  waste.  There  Avas  no  doubt  that  by  the  old 
common  law  whatever  a  lessee  annexed  to  the  freehold 
during  his  term,  unless  it  was  a  trade  fixture,  became 
the  landlord's  when  he  left,  but  Mawe's  counsel 
argued  that,  considering  the  capital  farming  required 
now-a-days,  and  the  elal)orate  implements  em[)loyed 
in  the  cultivation  of  the  land,  agriculture  was  every  bit 
as  much  a  trade  as  clock-making  or  iron-mongering. 
Moreover,  they  produced  authorities  which  showed 
that  hot-houses,  posts,  sheds,  colliery-engines,  and  the 
like,  had  in  various  cases  been  held  to  be  removable 
l)y  tenants  as  being  trade  erections  ;  and  they  defied 
the  plaintilFto  show  the  difference  between  such  things 
and  the  things  the  defendant  had  set  up.  AH  this  was 
very  plausible,  but  the  judges  came  to  the  conclusion 
that  Mawe  had  no  right  to  remove  his  erections. 
Th{;y  said  it  would  be  a  "  dangerous  innovation  "  to 
call  agriculture  a  trade,  and  that  the  hot-houses  and 


17G  LEADING    CASES    SIMPLIFIED. 

the  otlier  erections  the  dcfeiulaiit  made  so  much   of, 
were  all  more  or  less  connectoel  with  trade. 

An  anonymous  modern  poet  has,  in  glowing  hexa- 
meters, described  the  great  trial  wherein  :  — 

Elwes,  the  shrewd,  was  plaintiff,  and  Mawe,  the  thrifty,  defendant, 
Mawe  was  lessee  from  Elwes  of  lands  in  the  county  of  Lincoln, 
Messuage,  out-houses,  stables  and  barn,  in  the  parish  of  Blghy ; 
Mawe,  the  thrifty,  looked  round  him  and  scanned  those  premises 

wisely, 
Full  six  years  he  scanned  them,  beholding  the  farm's  occupation 
'Minished  in  use  and  worth  for  want  of  convenient  buildiuL^s : 
Therefore  he  laid  to  his  hand,  and  setup  those  convenient  buildings, 
All  at  his  own  expense,  a  carpenter's-shop  and  a  bcast-housc, 
Houses  of  fuel  and  carts,  and  a  pump-house,  of  brick  and  niort;ir. 
Founded  fa.st  in  the  ground,  and  tiled,  and  of  brick  were  the  pillars. 
So  he  possessed  his  farm,  and  rejoiced  in  his  useful  buildi:ifTs, 
He  and  all  men  and  all  beasts  of  the  field  in  the  parish  of  Blgby. 
Time,  which  men  count  by  moons,  but  the  gods  by  terms  and  vaca- 
tions, 
Stood  not  nor  halted  the  while,  and  the   lease  drew  nigh  to  its 

ending. 
Therefore,  did  Mawe,  the  thrifty,  bespeak  liis  own  heart  and  take 

counsel. 
This  way    and    that     revolving  the    cost    and  the  gain,  and    the 

chances 
Weighing,   and  thus   at  the    last  to  himself  did    his  heart   make 

answer : 
"Lo,   now,  I  leave  these  lands,  and   shall  be  to  this  farm  as   a 

stranger ; 
Soothly  it  little  shall  profit  me  then  if  the  houses  I  builded 
All  at  mine  own  expense,  the  carpenter' s-shop  and  the  beast-house, 
Houses  of  fuel  and  carts,  and  the  pump-house,  of  brick  and  mortar, 
Joy  to  all  men  and  all  beasts  of  the  field  in  the  parish  of  Bigby, 
Stand  there  after  my  time,  and  be  left  a  possesion  to  Elwes : 
Nay,  but  I  surely  will  move  their  foundations,  digging  around 

them, 
Baze  their  walls  and  their  stuff,  the  goodly  bricks  and  the  mortar, 
Keep  for  a  gain  to  myself  and  leave  the  land  as  I  found  it." 
So  then  in  all  things  he  did  in  such  wise  as  liis  lieart  had  coun- 
selled, 


LANDLORD    AND    TENANT.  177 

Razed  those   walls,  and   moved  the    foundations,  digging  around 

them, 
Carted  away  the  stuff  lor  liimself,  the  ])ricks  and  the  mortar. 
Elwes,  the  shrewd,  sat  aloft  and  beheld  from  his  height  of  rever- 
sion 
These  things  wrouglit,  and,  beholding,  his  anger  was  kindled  within 

him, 
Auger  that  moved  him  to  deeds  of  might  ami  to  Lincoln  assizes. 
There  he  declared  agaiasc  Mawe  for  his  injured  estate  in  reversion, 
Claiming  the  buildiugs  his  own,  their  destruction  a  waste  and  a 

trespass. 
Great  was  the  case  and  the  point  too  grave  for  Lincoln  assizes ; 
After  a  verdict  for  Elwes,  the  case  was  reserved  for  the  full  court. 
There  Avhcre  the  king's  own  pleas  were  before  his  justices  liolden, 
Counsel  for  Elwes  and  Mawe  stood  forth  and  strove  with  examples, 
Showing  what  things  in  old  time  were  esteemed  ingrown  to  the 

freehold, 
Rooted  past  lawful  removal,  what  kept  their  movable  nature, 
Much  they  debated  of  wainscot  and  window,  of  furnace  and  oven. 
Vats  of  the  dyer  and  cider-mills  and  boilers  and  salt  pans; 
Also,  not  least,  a  new  thing,  fire-engine,  a  blessing  to  coal  mines. 
Twice  in  two  terms  they  strove  and  the  court  considered  its  judg- 
ment. 
Judgment  which  afterwards,    well  advised,   the  chief  justice   de- 
livered, 
Stated  the  case  and    the    question  and   spoke   their    considered 

opinion ; 
No  right  had  the  defendant,  they  held,  to  remove  these  buildings. 
Wisely  he  showed  how  the  general  rule  bids  cleave  to  the  freehold 
Things  by  the  tenant  onco  fixed,  and  explained  the  divers  exceptions 
Suffered  in  favor  of  trade,  the  furnace,  the  vats,  and  the  boilers. 
Also  the  new  fire-engines,  the  cider- mills  and  t'.ie  salt-pans ; 
Ever  in  favor  of  trade,  such  exceptions,  no  mention  of  farming; 
Further  to  stretch  the  exception  to  mere  agricultural  buildings. 
Not  for  a  certain  trade,  were  great  and  rash  innovation. 
Wherefore  Elwes,  the  shrewd,  maintained  his  cause  and  his  verdict 
Had  great  worship  of  all  men  there,  and  went  homeward  rejoicing, 
Bearing  the  postea,  goodly-engrossed,  the  prize  of  the  battle. ^ 


'  Leading  Cases  Done  into  English.    By  an  Apprentice  of  Lincoln's  lun. 
London,  187(). 
12 


178  LEADING    CASES    SIMrLIFIED. 

COVENAI^TS    THAT   ''RUN  WITH   THE  LAND." 


SPEXCER'S    CASE. 
[5  Coke,  Ki;   1  Smith's  Ld.  Cas.  IIG.] 

In  the  days  of  Qucoii  Elizabeth  there  lived  a  gentle- 
man named  Spencer,  who,  wise  in  his  generation, 
married  a  woman  with  money.  Thus  erected  into  a 
landed  pro[)rietor,  he  let  a  house  and  ""rounds  to  a 
meinher  ot"  the  great  family  of  Smith  for  a  term  of 
twenty-one  years,  and  in  the  indenture  Smith  coven- 
anted to  l)i;ild  a  brick  wall  on  the  lands  let  to  him. 
Belbrc  very  long  Mr.  Smith  got  tired  of  his  residence, 
■and  assigned  the  demised  premises  to  a  Mr.  Jones 
without  having  made  the  least  attempt  at  buildmg  the 
brick  wall.  But  Jones  could  not  live  there  either, 
and  he,  in  his  turn,  passed  on  the  place  to  Clark. 
Meanwliile  nobody  had  built  the  wall,  and  Spencer 
called  on  Clark  to  do  it.  "  I'll  see  3'ou — ,"  replied 
Clark,  in  the  most  forcible  Saxon  of  the  period  ;  "  I've 
nothing  to  do  with  it ;  I  never  undertook  to  build  any 
brick  walls."  "  Well,  l)ut,"  said  Spencer,  "Smith 
did  ;  and  3'ou  stand  in  his  shoes."  Argument,  how- 
ever, was  useless,  and  S[)enccr  went  to  law. 

The  judges  had  quite  "  a  day  "  over  this  brick  wall. 
*'And,  after  many  arguments  at  the  l)ar,  the  case  was 
excellently  argued  and  debated  by  the  justices  at  the 
bench,  *  *  *  jn^j  many  ditrerenccs  were  taken 
and  agreed  concerning  express    covenants   and  cove- 


LANDLORD   AND   TENANT.  179 

Hants  in  law,  nnd  which  of  them  Avould  run  witli  the 
land,  and  which  of  them  are  collateral  and  do  not  iro 
Avith  the  land,  and  where  the  assignee  shall  be  bound 
without  naminir  him,  and  whore  not;  and  where  he 
shall  not  bo  bound,  aUhonuh  he  be  expressly  named, 
and  where  not."  They  decided  in  the  end  that  Clark 
was  not  l)()niid  to  build  the  Avail,  Smith  not  havinir 
covenanted  f  )r  his  assigns,  l)ut  only  for  himself  as  to  a 
sul)jcct-mattcr  not  in  existence  at  the  time  of  the 
covenant,  and  they  laid  down  the  law  on  this  subject 
very  clearly  to  this  effect :  — 

A  covenant  "  runs  with  the  land  "  when  either  the 
liability  to  perform  it,  or  the  right  to  take  advantage 
of  it,  passes  to  the  assignee  of  the  land.  Some  cove- 
nants run  with  the  land,  some  do  not,  thus ;  — 

1.  Suppose  the  lessee  Avho  makes  the  covenant 
omits  all  mention  of  his  assigns,  and  the  deed  speaks 
only  of  himself.      In  that  event  — 

a.  If  the  covenant  has  to  do  with  sometJiing  not  in 
existence  at  the  time  the  lease  is  made  the  assignee  is 
not  bound.  This  was  precisely  Spencer's  case;  the 
brick  wall  was  "  not  in  existence  at  the  time  the  lease 
was  in:ide,"  and  has  probably  not  been  built  yet. 

J).  But  if  the  covenant  has  to  do  something  which  t5 
%7i  existence  at  the  time  the  lease  is  made,  and  is  part 
of  the  demised  lands,  then  the  assignee  is  bound.  If, 
forexam])le,  Smith  had  covenanted  to  repair  the  house 
during  the  term,  Clark  would  have  been  liable  to  per- 
form that  covenant.  The  house  was  in  existence  at 
the  tiuie  the  lease  was  made,  and  it  was  of  course  part 
of  the  demised  lands. 

2.  Now  sup[)ose  the  lessee  Avho  makes  the  covenant 
covenants  for  his  assigns  as  well  as  for  himself. 


180  LEADING   CASKS    SIMrLTFIED. 

a.  The  assignee  is  of  course  liable  in  case  6  of  1, 
A  mild  exercise  of  a  fortiori  reasoning  will  show  that 
this  is  so.  If  an  assignee  is  bound  Avhen  he  is  not 
named,  much  more  is  he  bound  when  he  is  named. 

b.  But  the  assignee  is  also  ])()und  in  case  a  of  1, 
provided  that  what  is  to  be  done  is  to  be  done  on  the 
demised  premises.  Clark,  for  instance,  would  have 
had  to  build  the  wall  if  Smith  had  covenanted  for  his 
assigns. 

c.  The  assiijnee  is  not  lia])le  when  the  lessee's 
covenant  is  collatei'al  to  the  lands  demised.  If  the 
lessee  covenanted  to  build  a  crematory  in  the  next 
county,  very  well,  let  him  do  it,  there  is  no  great  harm 
in  a  crematory.  But  such  a  covenant  would  not  bind 
his  assigns  even  if  the  lease  said  so,  for  it  would  have 
nothinsr  to  do  with  the  land  demised. 


WAIVER  OF  CONDITION  IN  LEASE. 


DUIVEPOK'S    CASE. 

[3  Coke,  119;  1  Smith's  Ld.  Cas.  85.] 

In  the  tenth  year  of  the  reign  of  Queen  Elizabeth 
the  college  of  Corpus  Christi,  Oxford,  made  a  lease 
for  years  of  certain  land  to  a  Mr.  Bolde,  exacting  from 
him  a  covenant  that  he  would  not  alien  the  property 


LANDLORD  AND  TENANT.  181 

to  anybody  else  without  tlie  college's  consent.  Three 
years  afterwards  the  college,  by  deed,  gave  him 
permission  to  alien  to  anybody  he  pleased,  and 
sooji  afterwards  Bolde  availed  himself  of  this  permis- 
sion and  assigned  the  term  to  one  Tubb.  Tubb,  after 
a  brief  enjoyment  of  this  world's  goods,  made  his 
will  devising  the  lands  to  his  son,  and  went  over  to  the 
majoritv.  The  son  entered,  and  also  died,  but  in- 
testate, and  administration  was  granted  to  a  person 
who  assigned  the  term  to  the  defendant  Symms. 
Tlicreupon  the  wrath  of  the  president  and  scholars  of 
the  college  of  Corpus  Christi,  in  the  University  of  Ox- 
ford, was  kindled.  Bolde  had  covenanted  with  them 
not  to  assign  without  leave,  and  such  a  covenant,  they 
said,  should  have  been  observed  by  wiioever  held  the 
lands.  Therefore,  they  entered  for  the  broken  condi- 
tion, and  leased  to  Dumpor  for  twenty-one  years. 
Duiupor  entered,  l)nt  Symms  re-entered,  and  for  doing 
so  Dumpor  now  brought  this  action  of  trespass  against 
him,  the  college  spectator  of  the  tempest  from  the  safe 
shore.  Dumpor  did  not  succeed :  the  case  was  de- 
cided against  him  on  the  ground,  that  "  if  the  lessors 
dispen:50  with  one  alienation,  they  thereby  dispense 
Avith  all  alienations  after." 

"  '  Dumpor' s  case  '  always  struck  me  as  extraordi- 
nary," said  Lord  Eldox  in  1807,  "  but,"  he  added 
rather  regretfully,  "  it  is  the  law  of  the  land."  ^  "  The 
profession  have  always  wondered  at  Dumpor's  case," 
said  Chief  Justice  Mansfield  in  1812,  "  but  it  has 
been  law  so  many  centuries  that  we  cannot  now  re- 
vc-rso  it."  ^    Nevertheless,  it  remained  the  law  of  Eug- 


*  Brummell  v.  Macphcrson,  14  Ves.  173. 
^  Doe  V.  Bliss,  i  Tauut.  73(3. 


182  LEADING    CASES    SIMPLIFIKD. 

land  until  18G0,  when  Parliament  knocked  it  on  the 
head  by  enacting  that  "  every  such  license  should, 
unless  otherwise  expressed,  extend  only  to  the  permis- 
sion actually  given."  Dumpor's  easels  not,  however, 
to  1)0  neglected  by  the  American  student,  as  it  has 
been  recognized  and  followed  in  this  country  in  many 
subsequent  cases  early  and  late.^ 


GOODS    FlilVILEGED     FEO.V    DISTEESS     FOB 

RENT. 


SIMPSON  V.   HARTOPP. 

[Willos,  512;  1  Smith's  Ld.  Cas.  527.] 

John  Armstrong  was  a  stocking- weaver,  and  rented 
a  small  cottage  of  the  defendant  Harto[)p.  Early  in 
1741  he  hired  a  stocking-frame  from  the  plaintilfSimp- 
son,  at  so  much  a  week,  for  the  purposes  of  his  trade. 
About  the  end  of  the  year,  as  tenants  will  do,  he  got 
behindhand  with  his  rent,  and  Hartopp,  as  landlords 
will  do,  distrained  on  him.  There  was  not  much  for 
the  bailiifs  when  they  came;  indeed,  so  little  that 
there  was  not  enough  to  satisfy  the  rent  in  arrear 
without  can-ying  off  Simpson's  stocking-frame.  This 
was  done,  although  "  the  said  John  Armstrong's  ap- 


1  See  Taylor's  L.  &  T.,  sect.  28G;  notes  to  1  Smith's  Ld.  Cas. 


LANDLOIJD    AND    TKNANT.  183 

proiitico  was  then  weaving  a  stocking  on  the  said 
frame."  Wiien  he  heard  of  this,  the  anger  of  Simp- 
son Avas  kindled,  and  he  brought  an  action  of  trover 
for  the  stocking-frame,  and  succeeded  in  getting  it 
restored  to  him  ;  for  a  hindh)rd  has  no  business  to  dis- 
train on  Avhat  is  actually  in  use  at  the  time. 

The  genei-al  rule  is,  that  ail  personal  chattels  found 
on  the  premises,  whether  the  goods  of  the  tenant  or 
somel)ody  else,  can  be  distrained  for  rent.  iSimpsonv. 
Hartopp  introduces  us  to  the  exceptions  :  — 

I.  Some  things  are  abmlutely  privileged  fro!n  dis- 
tress ;  under  no  circumstances  can  they  be  taken. 
Such  things  are  — 

1.  Things  in  the  personal  use  of  a  man  (because 
the  law  does  not  wish  to  encourage  breaches  of  the 
peace),  as  the  hatchet  with  which  a  man  is  working, 
the  clothes  he  is  wearing,  or  the  horse  he  is  riding. 

2.  Fixtures  (because  damage  would  be  done  to  the 
freehold  in  tearing  them  away). 

3.  Thinf]i:s  sent  to  the  tenant  to  be  wrought  on  in 
the  way  of  his  calling  ;  this  exemption  is  for  the  sake 
of  trade  ;  no  one  would  like  his  boots  to  be  at  the 
mercy  of  his  col)blcr's  landlord  whenever  they  required 
mending.  So  a  horse  sent  to  a  farrier's  shop  cannot 
be  distrained  for  the  rent  of  the  shop,  nor  yarn  sent  to 
a  -weaver's,  nor  cloth  to  a  tailor's,^  nor  sacks  of  corn 
sent  to  a  mill  to  be  ground,  or  a  market  to  be  sold. 

4.  Goods  delivered  to  a  common  carrier  or  other 
person  to  be  conveyed  for  hire. 

5.  Perishable  goods  (because  such  articles  cimnot 
be  restored  in  statu  quo  ante  distraint  ;  they  soon  be- 


1  Hoskins  v.  Paul,  4  Ilalst.  110. 


184  LEADING    CASKS    SIMPLIFIED. 

come  corrupt  and  uneatable)  ;  and  therefore  if  I  am 
behind  in  my  rent,  ray  landlord  camiot  carry  oflf  my 
bread,  and  fruit,  and  milk.^ 

6.  Wild  animals  {feroe  naturce,  as  the  law-books  call 
them)  ;  because  no  one  has  any  valuable  property  in 
them.  Dogs  were  once  considered  ferce  naturce  —  one 
judge  went  so  far  as  to  call  them  vermin  —  but  they 
are  not  now,  and  when  an  animal,  naturally  wild,  has 
discarded  its  rouijh  manners  and  settled  down  to 
play  the  humbler  role  of  domestic  pet  —  a  tame  fox  or 
a  dancing  bear,  for  instance —  it  may  be  distrained  as 
much  as  a  horse  or  a  donkey. 

7.  Goods  in  the  custody  of  the  law  ;  because  already 
taken  in  execution,  and  because  a  court  will  not  brook 
interference  with  property  in  its  custody.'^ 

8.  Everything  in  the  houses  of  ambassadors  or  other 
public  ministers  of  a  foreign  state  is  by  the  law  of 
nations  exempt,  l)eing  considered  out  of  the  jurisdic- 
tion of  the  country.^ 

II.  Certain  other  things  are  privileged  conditionally. 
They  can  be  taken,  but  only  when  there  are  not  suffi- 
cient other  goods  on  the  premises  to  satisfy  the  land- 
lord's claim.     Such  things  are  — 

1.  The  instruments  of  a  man's  trade  ;  e.g.^  a  work- 
man's pickaxe,  a  doctor's  stethoscope,  a  lawyer's 
"Leading  Cases,"  or  a  stocking-weaver's  frame.  It 
would  be  contrary  to  public  policy  to  take  the  means 
whereby  a  man  lives.  Of  course,  if  the  lawyer  were 
actually  reading  his  law-book,  or  the  doctor  using  his 
surgical  instrument,  such  things  would  be  absolutely 


1  Given  v.  Blann,  3  Blackf.  64. 
"^  Noe  V.  Gibson,  7  Paige,  513. 
^  Taylor's  L.  &  T.,  sect.  596. 


LANDLORD  AND  TENANT.  185 

privileged,  as  being  in  their  personal  use ;  so  that 
there  would  be  no  necessity  to  make  thera  out  to  be 
conditionally  privileged. 

2.  Beasts  of  the  plough,  and  sheep.^ 

HI.  By  a  variety  of  statutes  in  the  different  States 
(which  the  student  must  consult  for  himself)  other 
exemptions  from  distress  are  made  in  addition  to  those 
at  common  law.  Among  these  are  the  necessary  tools 
of  a  mechanic,  household  goods  to  a  certain  value,  and 
other  articles. 


1  Taylor's  L.  &  T.,  sect.  5^7. 


186  LEADING    CASES    SIMrLlFIED. 


XII.  —  Insuhance. 


CONCEALMENT  OF  MATERIAL  FACTS. 


CARTER  V.  BOEHM. 

[3  Burr.  1!)05;   1  Smith's  Ld.  Cas.  G18.] 

The  <2:()veriior  of  Fort  Marlborou2;h,  in  the  Island  of 
Sumatra,  in  the  East  Indies,  came  to  the  conclusion 
that  there  was  considenilde  danger  of  his  fort  being 
captured.  He  wisely,  therefore,  wrote  to  his  brother 
in  England,  and  asked  him  to  get  the  fort  insured  for 
a  year.  The  brother  accordingly  went  to  Boehni  & 
Co.,  and  that  eminent  firm  insured  Fort  Marlborough 
against  cai)tnre  by  "  a  foreign  enemy  "  between  Octo- 
ber l()th,  1759,  and  October  IGth,  17G0.  In  April, 
1760,  the  fort  was  captured  by  the  French,  and  this 
action  was  brought  to  recover  the  insurance  money. 
The  insurers  declined  to  pay,  on  the  ground  that  cer- 
tain material  facts  contained  in  two  letters  whicli  the 
jrovernor  had  written  to  his  brother  in  September, 
1759,  had  been  concealed  from  them.  In  those  letters 
the  governor  spoke  of  the  weakness  of  his  fort,  and 
the  probability  of  the  French  attacking  it.  "The 
question,"  said  Lord  Ellenbokough,  in  delivering  the 


INSURANCE.  187 

judgment  of  the  court,  "  must  always  ])e  whether  there 
was  under  all  the  ch'cum.stance.s,  at  the  time  the  policy 
was  underwritten,  a  fair  representation  or  a  conceal- 
ment, fraudulent  if  designed,  or  though  not  designed, 
varying  materially  the  object  of  the  policy  and  chang- 
ing the  risk  undertaken  to  be  run."  Therefore,  it 
appearing  that  the  fort  was  little  more  than  a  factory, 
being  merely  intended  for  defence  against  the  natives, 
80  that  its  weakness  was  an  immaterial  fact  as  regarded 
the  French,  while  the  probability  of  their  attacking  it 
was  a  question  which  a  person  in  England  was  in  a 
better  position  to  determine  than  the  governor  him- 
self, Boehm  &  Co.  were  ordered  to  pay  up. 


FIEE  INSURANCE  —  CUSTOM  ART  USE  OF  PRO- 
HIBITED ARTICLES. 


HARPER  V.   CITY  IXS.   CO. 

[1  Bosw.  520;  22  N.  Y.  4-il ;  Lawson,  Us.  &  C.  157.] 

Everybody  knows  the  great  printing  and  publishing 
house  of  Harper  &  Brothers,  New  York.  Many  will 
also  remember  that  about  thirty  years  ago  this  exten- 
sive establishment  was  almost  entirely  destroyed  by 
fire.  Though  the  Harper's  Avere  well  insured  the  com- 
panies did  not  pay  up  without  some  law  suits.     There 


188  LEADING    CASES    SIMPLIFIED. 

was  one  policy  for  $10,000  in  the  City  lusunuice  Com- 
pany of  New  York  which  covered  books  and  l)()ok 
materials,  stereotype  plates,  paper,  etc.,  contained  in 
the  premises  and  privileged  "  for  a  printing  office  and 
bindery."  Called  on,  after  the  fire,  to  settle,  the 
oflBcers  of  the  company  drew  the  Messrs.  Harper's  at- 
tention to  one  of  those  numerous  conditions  which, 
printed  in  the  smallest  of  type  and  in  the  most  out  of 
the  way  place,  every  insurance  policy  contains.  This 
condition  was  in  these  words  :  "  The  company  shall  not 
be  liable  for  loss  or  damage  by  fire  occasioned  by  cam- 
phene  or  other  imilannnable  THpiid."  Now,  as  the  fire 
had  originated  through  tiie  carelessness  of  a  printer  in 
dropping  a  lighted  paper  into  a  pan  of  fluid  camphcne 
which  he  mistook  for  water,  it  looked  like  a  desper- 
ate case  for  the  firm.  But  they,  like  prudent  men, 
straightway  went  to  see  a  "good  lawyer."  They 
consulted  William  M.  Evarts,  and  he  advised  them  to 
bring  an  action  on  the  policy,  which  they  did.  On  the 
trial  a  number  of  witnesses  testified  thatcamphene  was 
necessary  for  fine  printing,  for  the  purpose  of  cleansing 
the  rollers  of  the  machines.  On  this  ground  the  com- 
pany were  ordered  to  pay  up,  the  principle  being  that 
where  a  certain  trade  or  business  is  insured,  the  insurer 
is  presumed  to  consent  that  all  its  customary  incidents 
shall  be  allowed,  though  the  policy  does  not  permit  it 
and  may  even,  by  its  printed  conditions,  forbid  it.  By 
insuring  the  plaintiff's  stock  with  the  privilege  of  a 
printing  office  and  book  bindery,  said  the  court,  the 
use  of  such  materials,  including  camphene,  as  were 
necessary  in  that  business  was  allowed;  otherwise  the 
contract  was  a  delusion  and  a  snare. 


INSURANCE.  189 

WHO    MAT  INSURE    THE   LIFE    OF   ANOTHER. 


COXXECTICUT,    ETC.,    INS.   CO.    v.    SCHAEFER. 

[94  U.S.  457.] 

Georsre  .ind  Frances  had  l)ceii  married  a  few  rears 
when  an  insurance  agent  appeared  on  the  scene,  and 
soon  demonstrated  what  a  good  thhig  it  Avould  he  for 
them  to  take  out  a  policy  in  his  company  on  their 
joint  lives,  so  that  if  he  died  she  would  have  $5,000 
to  comfort  her  for  her  loss,  and  vic.e  versa.  But  after 
thcv  had  got  the  policy  the  course  of  true  love  ran 
an^^thing  but  smooth.  The  end  of  it  was  that  in  two 
short  years  the  judge  was  called  on  to  cut  the 
hymeneal  knot  —  George  and  Frances  were  divorced. 
Then  George  married  a  Frances  II.  and  Frances  niar- 
ried  a  George  II.  By-and-by  George  I.  died,  and 
Francis  I.,  when  she  heard  the  news,  unlocked  the 
bureau  drawer,  took  out  the  policy,  and  concluded  to 
open  a  bank  account  that  afternoon,  after  she  had 
called  at  the  insurance-office  for  her  money. 

The  insurance  manao;er  sat  in  his  counting-house 
counting  out  his  money.  He  chuckled  to  himself  as 
he  read  over  the  long  list  of  innocents  who  had 
handed  over  their  money  for  his  company  to  keep. 
He  smiled  as  he  thought  how  the  bum[)  of  confidence 
had  been  developed  in  some  people,  when,  enter 
Frances.  The  manager  pleasantly  handed  her  a  chair, 
mistaking  her  for  an  applicant  for  insurance ;  but 
when  she  produced  the  old  polic}^  on  the  life  of  her 


190  LEADING    CASES    SIMPLIFIED. 

first  George,  his  smile  departed  ;  and  his  h)olc  changed 
to  one  of  blank  astonishment,  as  she  asked  him  if  he 
would  be  jrood  enough  to  write  her  a  check  for  the 
amount,  in  order  that  she  might  get  it  in  the  bank  be- 
fore three  o'clock.  "  Pay  3'ou  to-day?  "  he  gasped. 
"  You  must  be  crazy,  madam  ;  I  never  heard  of  such 
a  thing.  You  quite  take  my  breath  away,  I  assure 
you."  "  Well,  1  am  sorry  if  I  have  made  a  mistake, 
but  docs  not  the  policy  say  that  you  Avill  pay  me  the 
money  '  at  his  death  ?  '  and  you  know  very  well  that 
he  has  been  dead  nearly  a  week."  "  I  admit,"  an- 
swered the  manager,  "  that  it  says  <  at  his  death,'  but 
it  really  means  nothing  of  the  kind.  You  see,  before 
we  can  pay  you  we  have  to  find  out  whether  the  man 
is  dead,  what  he  died  of,  whether  the  answers  he  gave 
about  the  lives  of  his  grandfathers  and  grandmothers 
and  uncles  and  aunts  were  all  correct.  Of  course,  we 
know  that  he  is  dead,  but  not  officially,  madam,  not 
officially.  All  this  will  take  a  long  time,  for  I  have 
the  best  reason  for  believing  that  we  can  establish,  by 
correspondence  with  parties  in  Germany,  that  his 
maternal  granduncle  was  sixty-nine  years  and  eleven 
months  old  when  he  died,  while,  according  to  our  de- 
ceased friend's  statement,  he  should  have  been  seventy. 
If  this  is  so,  it  Avas  a  misrepresentalion,  which,  of 
course,  releases  us  from  liability,  to  say  nothing  of  a 
report  which  one  of  our  agents  brings  that  an  old 
acquaintance  remembers  his  falling  from  a  tree  when 
bird's-nesting  while  a  boy — another  important  fact 
which  he  concealed  from  us.  Come  back  in  a  couple 
of  years,  madam,  and  we  will  then  be  in  a  position  to 
say  whether  we  will  pay  you  or  not."  "  Swindler," 
cried  Frances,  "I'll  send  my  husband  to  talk  to  you." 


INSURANCE.  191" 

'<Calni  yourself,  madam,"  returned  the  manager; 
"you  can  not  mean  that  you  have  secured  another 
husband  in  a  week."  Then  Frances  told  the  manager 
how  she  and  George  had  l)een  divorced  more  than  a 
year  before,  and  that  she  had  married  again.  As  he 
listened  to  this,  his  smile  returned,  and,  raising  his 
eyes,  he  said  slowl}^ :  "Before  you  go,  madam,  I 
should  like  to  ask  you  if  you  have  ever  heard  of  Bold- 
ero?"  "  Boldero,"  exclaimed  Frances;  "who  was 
he,  a  Chinaman?  "  "No,"  returned  the  manager,  "  an 
Englishniiin.  Listen  to  his  story  and  then  say  if  you 
think  it  worth  while  coming  here  again  even  in  two 
years  : 

"  About  seventy-five  years  ago  there  lived  a  great 
statesman  named  William  Pitt,  who  was  Prime  Minis- 
ter of  England,  and  whose  income  was  never  quite  up  to 
his  expenses.  Among  his  many  creditors  was  one 
Boldero,  a  carriage-maker,  who  had  a  bill  against  him 
for  something  like  £2,500.  Seeing  small  chance  of 
his  ever  getting  his  money  from  either  Pitt  living,  or 
his  estate  when  he  died,  Boldero  went  to  the  Pelican 
Insurance  Company  in  London,  and  took  out  a  policy 
on  the  premier's  life  for  the  £2,500.  By-and-by  Mr. 
Pitt  died,  and  a  grateful  country,  after  depositing  his 
r(!mains  in  Westminster  Abbey,  ordered  all  his  debts 
to  be  paid  from  the  public  purse.  Up,  then,  comes 
Ml-.  Boldero,  and  gets  his  £2,500  from  the  government 
fund.  Then  he  presents  his  policy  at  the  Pelican 
office,  and  the  directors  refusing  to  pay  him,  he  brings 
a  suit  in  the  Court  of  King's  Bench.  But  there  he  is 
worsted,  for  Lord  Ellenborough,  Chief  Justice  of 
England,  decided  that  a  contract  of  life  nisurance  is  a 
contract  of  indemnity,  and  that,  as  Boldero  had  been 


192  LEADING    CASES    SIMPLIFIED. 

paid  his  debt,  he  could  not  recover  anything  from  the 
company.^ 

"  So,  madam,  you  must  phiinly  sec  that  by  ])eing 
divorced  and  marrying  again,  your  interest  in  the  life 
of  3'our  first  husband  ceased,  and,  like  Boldero,  3'ou 
can't  get  any  insurance  money.  Good  day."  Fi-ances 
left  the  office,  and  went  straight  to  a  lawyer.  To 
him  she  related  the  whole  case,  beginning  with  the 
visit  of  the  agent  five  years  before,  and  ending  with 
her  interview  with  the  manager.  "  He  asked  me," 
said  she,  "if  I  had  ever  heard  of  Boldero."  "Did 
he,  indeed,"  said  the  man  of  law,  "  then  go  back  and 
ask  hirn  if  he  ever  heard  of  Dal  by."  ^ 

The  last  scene  is  laid  within  the  august  portals  of 
the  Supreme  Court  of  the  United  States,  where  the 
man  of  law  has  safely  piloted  Frances'  action  against 
the  company.  The  court  is  delivering  its  judgment. 
There  is  no  use,  they  say,  quoting  Boldero's  case  to  us, 
for  as  even  the  great  Homer  sometimes  nods,  the  great 
Ellenborough  sometimes  made  a  mistake,  and  v.ht'n 
he  decided  that  Boldero  could  not  recover  the  £2,500 
from  the  company  he  made  a  very  big  one,  indeed. 
The  English  judges  never  liked  that  decision  ;  so 
when,  fifty  years  after,  one  Mr.  Dal  by  sued  on  a 
policy  on  the  life  of  the  Duke  of  Cam])ridge,2  ^\^q 
Court  of  Exchequer  Chamber  unanimously  overruled 
Boldero's  case.  A  man  cannot  take  out  an  insurance 
on  the  life  of  a  total  stranger,  for  the  insurance  is  only 
valid  when  he  has  some  interest  in  the  life  of  the 
party  whom  he  insures.     Any  reasonable  expectation 


1  Godsall  V.  Boldero,  9  East,  72;  2  Smith's  Ld.  Cas.  292. 

2  Dalby  v.  ladia,  etc.,  Life  Ass.  Co.  15  C.  B.  365;   2  Smith's  Ld. 
Cas.  298. 


ixsrr.ANCF.  193 

of  ppcuiiiary  benefit  or  :i(lv:iiit;igc  from  the  continued 
life  of  another  creates  a  sufficient  insurable  interest  in 
such  life.  Thus,  a  man  has  an  insurable  interest  in 
his  own  life,  and  in  that  of  his  wife  and  children,  a 
woman  in  that  of  her  husband,  a  child  in  the  life  of  his 
parent,  or  a  creditor  in  the  life  of  his  debtor.  A  con- 
tract of  life  insurance  is  not  like  that  of  fire  insurance, 
or  mai'ino  insurance,  a  contract  of  indemnity  merely, 
(this  is  where  Ellenborough  blundered),  but  it  en- 
titles the  insured  to  recover  the  whole  amount  without 
reference  to  what  his  real  loss  is.  All  that  is  necessary 
is  that  he  should  have  had  an  insurable  interest  at  the 
time  the  poUcij  ivas  taken  out.  The  cessation  of  this 
interest  does  not  aftect  the  case  at  all.  Frances 
clearly  had  an  insurable  interest  at  the  time  the  policy 
■was  taken  out — for  George  and  she  were  then  man 
and  wife  — and  the  subsequent  divorce  and  re-marriage 
did  not  alter  the  case. 

So  she  got  her  mone}^  after  waiting  five  years. 
But  then  beneficiaries  under  life  insurance  policies 
have  generally  to  wait  longer  than  that,  and  usually 
consider  themselves  very  lucky  if  they  ever  get  any- 
thing at  all. 

13 


11)4  LEADING    CASES    SIMl'LIFIED. 


XIII.  —  Bail^iexts. 


THE  DIFFERENT  KINDS  OF  BAILMENTS. 


COGGS  V.   BEKXARD. 

[Ld.  Raym.  90!);   1  Smith's  Ld.  Cas.  284.] 

Coggs  wanted  several  hogsheads  of  brandy  removed 
from  one  cellar  to  another.  Instead  of  employing  a 
regular  porter  to  do  the  job,  he  accepted  the  gratui- 
tous services  of  his  friend,  Bern:ird,  who  said  he  would 
move  them  safely  and  securely.  But  the  amateur  did 
his  work  so  clumsily  that  one  of  the  casks  was  staved, 
and  the  street  streamed  with  jrood  old  brand  v.  Cojrgs 
was  angry,  and  notwithstanding  Bernard  was  to  re- 
ceive nothing  for  his  trouble,  successfully  mantained 
an  action  against  him  for  the  spilt  liquor. 

This  is  one  of  the  most  celebrated  cases  ever  decided 
by  a  court,  for  the  elaborate  judgment  of  Chief  Justice 
Holt  contains  the  first  exhaustive  and  methodical  ex- 
position of  the  law  of  bailments.  A  bailment  is  the 
delivery  of  a  thing  in  trust  for  some  special  purpose, 
the  person  who  delivers  it  being  called  the  bailor,  and 
the  person  to  whom  it  is  delivered  the  bailee.  Lord 
Holt  divides  bailments  into    six  kinds  —  depositum, 


BAILMENTS.  195 

mnndatum,  commodatum,  vadium,  locatio  rei,  and 
iocaii)  operis  faciendi.  Tlieso  iiiiiy  also  be  classified  : 
(I)  For  the  benefit  of  the  ba'dor  ah)ne  ;  (2)  for  the 
benefit  of  the  bailee  alone;  (3)  for  the  mutual  benefit 
of  the  bailor  and  bailee. 

1.  Under  the  first  head  come  depositum  and  man- 
dnlum. 

(rt.)  Depositum  "-^  iha  delivery  of  goods  to  be  taken 
care  of  i'ov  the  bailor  without  the  bailee  receiving  any- 
thing for  his  trouble:  e.g.,  I  ask  my  friend  Brown  to 
hold  my  w^ateh  while  I  am  i)laying  a  game  of  base-ball. 
BrowMi  is  responsible  only  for  gross  negligence.  If  he 
takes  a  moderate  amount  of  care  of  my  watch,  he  will 
not  be  obliged  to  give  me  a  new  one  if  it  is  stolen,  or 
lost,  or  broken.  But,  on  the  other  hand,  if  he  has 
been  grossly  negligent,  he  cannot  defend  himself  by 
showing  that  he  has  lost  his  own  things  with  my 
watch.  At  the  same  time  I  must  exercise  a  certain 
amount  of  care  in  the  selection  of  niy  depositary.  If 
I  were  to  intrust  my  watch  to  an  idiot  or  a  little  irirl, 
no  amount  of  gross  negligence  on  their  part  would 
give  me  a  remedy  against  them.  I  must  bear  the  con- 
sequences of  my  own  stupidity.  The  depositary,  as  a 
I'ule,  must  not  make  use  of  the  things  deposited.  But 
if  no  harm  would  naturally  come  from  his  doing  so, 
he  may.  Brown,  for  example,  might  draw  my  watch 
from  his  pocket  to  see  the  time. 

(6.)  Mandatum  —  the  delivery  of  goods  to  be  done 
sovtHhiiig  ivilh  for  the  bailor,  without  the  bailee  re- 
ceiving anything  for  his  trouble :  e.g.,  I  ask  my  friend 
Jones  to  ])ost  a  letter  for  me. 

As  in  deposition  (and  mandatum  is  only  a  kind  of 
su[)erior  depositum) ,  the  bailee  is  liable  for  gro^s  neg-' 


196  LEADING   CASES   SIMPI.IFIED. 

ligencG  only.  The  contract  l)et\veen  Mr.  Coirars  Jind 
Mr.  Bernard  was  one  o^  mandatum,  though  it  is  to  l»e 
observed  that  Mr.  Bernard  laid  additional  responsibil- 
ity on  his  shoulders  by  undertaking  to  effect  the  re- 
moval *'  safely."  The  rule,  however,  that  a  man(latt)ry 
is  responsible  for  gross  negligence  only,  is  to  some  ex- 
tent qualified  by  the  maxim  spondes  peritiam  artisy 
that  is  to  say,  if  your  position  implies  skill  you  must 
use  it.  If  I  ask  a  jockey  to  do  me  the  favor  to  try  my 
horse,  or  a  surgeon  otters,  without  pay,  to  set  my 
sprained  ankle,  they  must  use  the  ordinary  care  of 
persons  of  their  qualifications.  What  would  not  be 
negligence  at  all  in  unskilled  persons  might  be  gross 
negligence  in  them. 

2.  Under  this  head  (for  the  benefit  of  the  bailee 
alone)  comes  commodatum. 

(a.)  Commodatum  —  the  lending  oi  a  thing  to  be 
returned  just  as  it  is;  e.g.,1  lend  my  gray  mare  to 
Jones  to  ride  to  the  next  town  on  ;  I  don't  expect  him 
to  return  me  another  gray  mare,  but  the  same  identi- 
cal old  horse  that  I  lend  him.  (Note.  — •  If  I  expected 
a  ])orrower  to  return  me  not  the  identical  thinirs,  but 
similar:  e.g.,  if  I  lend  him  half  a  dozen  postage 
stamps,  or  $5,  it  would  not  be  commodatum  but 
mutuum. ) 

Commodatum  being  a  contract  in  which  the  only 
person  benefited  is  the  bailee,  that  gentleman  is  re- 
sponsible even  for  slight  negligence;  the  more  so  as 
by  the  fact  of  borrowing  he  may  be  taken  to  have 
represented  himself  to  the  lender  as  a  fit  and  proper 
person  to  be  intrusted  with  a  valuable  article.  The 
commodatory  must  strictly  pursue  the  terms  of  the 
loan.     If  I  borrow  a  horse  or  a  book  to  ride  or  to  read 


BAILMENTS. 


197 


myself,  I  have  no  business  to  allow  anybody  else  to 
ride  or  road.  If  the  horse  is  lent  for  the  highway,  I 
must  not  take  it  alonii;  dangerous  bridle  paths.  The 
bailee  must  redeliver  the  chattel,  when  the  time  has 
cx[)ired,  just  as  it  was,  reasonable  wear  and  tear  ex- 
cepted. Ho  is  not  responsible,  however,  if  the  arti- 
cle perishes  by  inevitable  accident,  or  by  its  being 
stolen  from  him  without  any  fault  of  his.  The  bailor 
must  disclose  delects  of  which  ho  is  aware,  as  for 
instance,  that  the  gun  he  lends  his  friend  Brown  is 
more  likely  than  not  to  burst  and  blow  his  hand 
off. 

a.  Under  the  last  head  (for  the  mutual  benefit  of 
bailor  and  bailee)  come  vadium,  locatio  rei  and  locatio 
operis. 

(a.)  Vadium  (otherwise  known  as  pignori  accep- 
tum.)  —the  contract  of  pawn.  We  will  hope  the  stu- 
dent is  not  frequently  the  bailor  here. 

Tlie  Ix'nclit  being  mutual,  the  degree  of  diligence  re- 
qu'.i-e<]  of  the  bailee  is  "ordinary."  If  in  spite  of  due 
diligence  the  chattel  is  lost  while  in  the  pawnee's 
kee;)i:;g,  he  may  still  sue  the  pawnor  for  the  amount 
of  his  debt.  The  effect  of  the  contract  of  pawn  is  not 
(like  that  of  a  mortgage  of  personalty)  to  pass  the 
property  in  the  chattel  to  the  bailee  ;  nor,  on  the 
other  hand,  is  it  (like  that  of  a  lien)  merely  to  give 
him  a  hostage,  but  it  gives  him  such  a  special  prop- 
erty in  the  thing  pawned  as  enables  him,  if  the  pawnor 
makes  default,  to  sell  it  and  pay  himself;  the  sur[)lu3 
being,  of  course,  handed  l)ack  to  the  pawnor.  As  a 
rule,  the  pawnee  may  not  make  use  of  the  thing 
bailed  to  him.  If,  however,  it  is  an  article  which 
cannot    be   the    worse   for  the   user, — jewellery,    for 


198  LKADING    CASES    SIMPLIFIED, 

instance,  —  ho  may;  hut  in  such  a  case  ho  wouhl  Ire 
responsil)lc  lor  the  loss,  however  it  ha})i)eno<l.  More- 
over, if  the  pawn  bo  of  such  a  nature  that  the  })a\\neo 
is  put  to  expense  to  keep  it,  e.g.y  if  it  be  a  horse  or  a 
cow,  the  ])awnee  may  make  use  of  it, — ridinii:  the 
horse  or  milking  the  cow  —  as  a  recompense  lor  the 
cost  of  maint(!nance. 

(6.)  Locat'io  rei  —  the  cvery-day  contract  of  the 
hirinij  of  ofoods. 

This  being  a  mutual  benefit  bailment,  the  degree  of 
negligence  for  which  the  hirer  is  answerable  is  ordin- 
ary. 1  hire  a  horse  and  buggy  from  a  livory-kcoper, 
and  during  the  course  of  my  drive,  the  buggy  is 
run  into  and  smashed,  or  the  horse  runs  away  and 
tears  everything  to  pieces.  »  The  law  does  not  make 
me  pay  the  livery-man  for  the  damage,  if  I  have  used 
ordinary  care  in  driving,  that  is,  if  I  have  driven  iiis 
horse  as  I  would  my  own. 

(c. )  Locatlo  operis  faciendi  —  when  the  bailee  is  to 
bestow  labor  on  or  about  the  thing  bailed,  and  to  be 
paid  for  such  labor. 

Generally  speaking,  the  rule  as  to  care  m  this  case 
is  the  same  as  in  vadium  or  locatio  rei.  I  give  my  coat 
to  a  tailor  to  bo  mended  or  my  watch  to  a  jeweller  for 
the  same  pur[)ose.  They  must  use  ordinary  care  in 
doing  it,  and  of  course  if  their  occupation  implies  skill 
they  must  use  it,  as  in  case  1  (6.)  But  when  a  bailee 
of  this  kind  is  a  person  exercising  a  public  employ- 
ment—  a  common-carrier  or  an  inn-keeper,  he  is  re- 
quired to  exercise  much  greater  circumspection.  In 
ftict,  the  law  makes  him  an  insurer  of  my  goods,  ex- 
cept where  the  loss  arises  from  the  act  of  God  or  the 
public  enemy. 


BAILMENTS.  109 

LIABILITIES  OF  ISX  KEEPERS, 


CAYLE'S   CASE. 

[8  Coke,  32;   1  SiuiUi's  LI.  C:is.  194.] 

A  latcdtniveller  gained  his  timely  iiia,and  dismouut- 
inc'  from  his  fiery  steed  bade  mine  host  send  it  out  to 
pasture.  The  hindh^rd,  accordingly,  scut  it  into  a 
field  ;  but,  when  its  master  wished  to  resume  his  jour- 
ney, it  was  nowhere  to  be  found.  The  owner  now 
tried  to  make  out  that  the  landlord  was  responsible. 
But  it  was  held  that  he  was  not,  for  the  horse  had  been 
sent  into  the  field  at  the  express  desire  of  the  guest ; 
and  several  other  rules  as  to  the  liability  of  inn-keepers 
this  great  case  established  in  the  law,  viz.  : 

1.  If  a  neighbor,  who  is  no  traveller,  but  simply  a 
friend  who  is  lodging  thereat  his  request,  has  his  goods 
stolen  from  the  inn,  the  inn-keeper  is  not  liable. 

2.  An  inn-keeper  is  bound  to  answer  for  himself  and 
his  family,  for  his  chambers  and  stables. 

3.  It  is  no  excuse  that  he  delivered  the  guest  the 
key  of  the  chamber  in  which  he  is  lodged,  and  that  he 
left  that  chamber  door  oi)en. 

4.  Although  the  guest  does  not  deliver  his  goods  to 
the  inn-keeper  to  keep,  nor  acquaint  him  with  them, 
yet,  if  they  be  carried  away  or  stolen,  the  inn-kee[)er 
is  liable. 

5.  The  inn-keeper  requires  his  guest  to  put  his  goods 
in  a  certain  place  under  lock  and  key,  and  then  ho  will 
warrant  them,  otherwise  not  ;  the  guest  lets  them  lie 


200  LEADING   CASES    SIMPLIFIED. 

in  an  outer  place  where  they  arc  taken   away.     The 
inn-keeper  shall  not  be  charged. 

6.  The  inn-keeper's  liability  extends  to  all  movable 
iioods. 

7.  If  the  guest's  servant,  or  he  who  comes  with  him, 
or  he  whom  he  desires  to  be  lodged  with  him,  steals 
or  carries  away  his  goods,  the  inn-keeper  shall  not  be 
charged. 

8.  If  the  guest  be  beaten  at  the  inn,  the  inn-keeper 
shall  not  answer  for  it. 


BERKSHIRE  WOOLLEN  CO.  v.   PROCTOR. 

[7Cush.417.] 

Bussell,  the  agent  of  the  Berkshire  Woollen  Com- 
pany, went  to  Boston  to  attend  to  a  law-suit  for  his 
principals.  He  put  up  at  the  Marlboro  hotel  in  that 
city,  along  with  several  witnesses  that  he  had  brought 
along  with  him.  Law-suits,  as  some  people  know,  cost 
money,  and  Russell,  therefore,  besides  spare  change, 
had  a  package  containing  $500  in  his  trunk.  He  had 
been  at  the  hotel  about  three  weeks,  when  he  discov- 
ered that  a  thief  had  come  into  his  room,  picked  the 
lock  of  his  trunk  and  departed  with  the  shekels.  The 
Woollen  Company  did  not  like  to  lose  good  money  in 
this  way,  and  they  immediately  instituted  a  suit  against 
the  landlord  for  the  amount.  Mine  host  made  several 
defences.     Among  other  things  he  said  that  as  Russell 


BAILMENTS.  201 

was  o-oinjr  to  be  in  Boston  several  weeks,  he  had  made 
a  special  agreement  with  him  to  ])oard  him  at  so  much 
a  week.  "This  made  him  a  ])oarder,"  he  argued, 
"  and  an  inn-keeper  is  only  an  insurer  of  the  property 
of  '  guests.'  "  But  the  court  held  that  a  traveller  who 
puts  up  at  an  inn,  and  is  received  as  a  guest,  does  not 
cease  to  be  a  guest  from  the  fact  th;it  he  makes  an 
ao-recment  with  the  inn-keeper  for  the  price  of  his 
board  by  the  week.  Beaten  from  this  position,  lie  said 
that  he  was  quite  willing  to  stand  liable  for  the  i)rop-' 
erty  of  his  guests,  but  that  he  thought  he  ought  not  to 
p:iy  for  what  they  carried  with  them  belonging  to 
other  people.  But  the  court  told  him  that  it  was  an 
old  princi[)le  of  law,  that  if  a  servant  is  robbed  of 
his  master's  money  or  goods,  the  hitter  may  maintain 
an  action  against  the  inn-keeper  in  whose  house  the 
loss  was  sustained.  These  were  two  knock-downs  for 
the  plaintiff,  but  the  defendant  came  up  smiling  for  a 
third  and  final  round.  "At  any  rate,"  he  said,  "I 
am  only  liable  for  such  sums  of  money  as  my  guests 
are  obliged  to  carry  for  their  necessary  travelling  ex- 
penses." "No,"  answered  the  court,  "you  are 
wrong  again.  The  responsibility  of  the  inn-keeper 
extends  to  all  the  movable  goods  and  chattels  and 
moneys  of  his  guest  which  are  placed  within  the  inn." 
The  landlord  could  fight  no  longer  ;  he  threw  up  the 
sponge  and  paid  the  judgment. 


202  LEADING    CASES    SIMPLIFIED. 


RESPONSIBILITY  OF  CARRIER  OF  PASSENGERS 
FOR  DEFECTIVE  VEHICLE. 


INGALLS  V.    BILLS. 

[0  Mctc.  1 ;  Thomp.  Ld.  Cas.  Carr.  Pass.  112.] 

Mr.  IiigiiUs  was  another  unfortunate  traveller.  Rid- 
ing ou  the  top  of  a  coach  whicli  carried  i)a.ssongers 
between  Cauibridge  and  Boston,  he  was  surprised  to 
hear  the  axle  crack,  to  see  one  of  the  hind  wheels  coiue 
off  and  to  feel  the  vehicle  settle  down  on  one  side. 
Witlutut  waiting  for  anything  more,  he  made  a  jump 
to  the  pavement,  but  not  being  able  to  land  with  the 
abilitv  of  a  trapeze  performer,  he  broke  his  arm.  A 
broken  arm  is  no  joke  and  Mr.  Ingalls  determined  to 
make  the  coach  proprietor  pay  the  damage.  The  lat- 
ter was  just  as  determined  not  to  pay.  In  the  first 
place  he  pleaded  that  if  Mr.  Ingalls  had  kept  his  seat, 
as  he  ought  to  have  done,  he  would  not  have  been 
hurt  at  all,  for  it  was  his  leap  to  the  pavement  which 
had  broken  his  arm  and  not  the  overturning  of  the 
coach.  But  the  court  held  that  where  a  passenger  is 
placed,  in  consequence  of  the  carrier's  want  of  care,  in 
a  situation  so  perilous  as  to  render  his  endeavoring  to 
escape  an  act  of  precaution,  the  carrier  is  lial)lo  for  the 
injury  he  receives  in  doing  so,  even  though  it  after- 
wards turns  out  that  if  he  had  kept  his  seat  he  would 
not  have  been  hurt  at  all.  Then  the  coach  })ro[)rietor 
resorted  to  another  defence,  and  this  time  with  success. 
He  proved  that  he  had   his  coach  made  of  the  best 


BAILMENTS.  203 

matorinls  in  the  market,  th:it  it  had  been  carefully  ex- 
amined and  inspected,  Ixit  that  the  axle  had  broken 
on  account  of  a  hidden  defect  in  its  interior  which  no- 
body could  have  discovered  or  have  been  aware  of. 
The  court  held  that  this  was  enough  and  that  he  was 
not  liable.  Carriers  of  passengers,  that  said,  were 
bound  to  the  utmost  care  and  diligence,  in  the  trans- 
portation itself  and  in  providing  safe  and  sufficient  vehi- 
cles. But  "  whei-e  the  accident  arises  from  a  hidden  and 
internal  defect  which  a  careful  and  thorough  examina- 
tion would  not  disclose,  and  which  could  not  be 
guarded  against  by  the  exercise  of  a  sound  judgment, 
then  the  carrier  is  not  liable  for  the  injury,  but  the 
misfortune  must  be  borne  by  the  sufferer  as  one  of 
that  class  of  injuries  for  which  the  law  can  afford  no 
redress  in  the  form  of  a  pecuniary  recompense."  ^ 


1  It  must  strike  the  observer  as  somewhat  strange  that  the  law 
regards  the  safety  of  a  chattel  while  iu  transit  as  of  more  importance 
than  the  life  or  person  of  a  human  being.  A  carrier  of  goods  is 
(with  two  rare  exceptions)  an  insurer  of  their  safet\-.  If  there  had 
been  a  b:^skct  of  eggs  on  the  top  of  the  coach  on  which  Mr.  Ingalls 
was  riding,  audlhcbrolcen  axle  had  spilled  them  into  the  street,  the 
coach  proprietor  would  have  had  to  pay  for  them.  However,  the 
destinction  itself  is  not  more  absurd  than  tlie  reasons  which  the 
courts  continue  to  give  for  maintaining  it.  When  property  is  in- 
trusted to  a  carrier,  say  the  courts,  the  owner  loses  all  sight  of  it; 
it  is  inanimate  and  cannot  take  care  of  itself.  "What  is  there  to  pre- 
vent the  carrier  and  some  Jesse  James  of  the  road  secretly  making  a 
divide  of  the  property  ?  To  protect  persons  havingdealings  with  car- 
riers, we  must  make  them  insurers.  "  But  persons,''^  say  the  courts, 
"are  very  different  —  they  can  take  care  of  themselves,  and  can 
exercise  that  vigilance  and  foresiglit  in  the  maintenance  of  their 
rights  which  the  owners  of  goods  cannot  do."  This  had  a  little 
show  of  sense  when  people  rode  in  stage  coaches,  but  we  should 
very  much  like  to  see  some  one  of  our  modern  judges,  who  are  so 
fond  of  applying  this  reason  to  the  means  of  transit  of  to-day. 


204  LEADING    CASES    SIMPLIFIED. 


RAILROAD    TIME    TABLES    AND    CONTRACTS. 


DENTON  V.  GREAT  NORTHERN  RAILWAY  CO. 

[5  El.  &  Bl.  8G0;  Thomp.  Ld.  Cas.  Carr.  Pass.  52.] 

Oil  the  25th  of  March,  1855,  Mr.  Denton,  an  en- 
gineer of  some  eminence,  had  occasion  to  go  from 
Peterborongh  to  Hull,  where  he  had  an  appointment 
for  the  next  morning.  He  consulted  the  company's 
time-tables,  and  found  there  was  a  train  leaving  Peter- 
borough at  7  p.  M.  which  would  land  him  at  Hull 
about  midnight.  This  just  suited  hijn,  so  he  took  his 
ticket  for  PIuU  and  started  by  it.  But  when  he  got  to 
a  place  called  Milford  Junction,  where  passengers 
change  cars  for  Hull,  he  was  informed  by  an  obliging 
official  that  the  late  train  to  Hull  had  been  discon- 
tinued, and  that  he  could  not  get  there  that  night. 
Tlie  fact  was,  that  the  line  from  Milford  Junction  to 
Hull  belonged  to  the  North-Eastern  Railway  Com- 
pany, who  till  March  1st  had  run  a  train  departing  a 
few  minutes  after  the  arrival  of  the  train  leaving 
Poterl)()r()ugh  at  7  p.  m.  But  it  had  not  run  at  all 
during  jNLirch,  and  the  Great  Northern  Eailway  Com- 
pany had  published  their  ]\Iarch  time-tables,  though 
they  had  had  notice  that  it  would  not  run.  In  conse- 
quence of  the  absence    of  this  train,  Mr.  Denton  did 


"takin£;care  of  himself"  and  "  exerclsins?  vigilance  and  foresight 
in  the  maintc-nance  of  his  rights  "  in  the  midst  of  a  railroad  colli- 
sion or  a  steamboat  explosion. 


BAILMKNTS.  205 

not  grot  to  Hull  in  timo  to  keep  his  appointment,  and 
sustained  damage  to  the  amount  of  £5  10s.,  tor  which 
he  sought  to  make  the  Great  Northern  Eailway  Com- 
pany liable.  He  was  quite  successful.  The  company- 
were  held  liable  on  the  grounds  :  — 

1.  That  they  had  been  guilty  of  a  false  reiirescntation. 
**  It  is  all  one,"  said  Lord  Campbell,  "  as  if  a  i)ei-son 
duly  authorized  by  the  company  had,  knowing  it  was 
not  true,  said  to  the  plaintiff,  '  There  is  a  train  from 
Milford  Junction  to  Hull  at  that  hour.'  The  plaintiff 
believes  this,  acts  upon  it,  and  sustains  loss.  It  is 
well  established  law  that  where  a  person  makes  an  un- 
true statement,  knowing  it  to  be  untrue,  to  another, 
who  is  induced  to  act  upon  it,  an  action  lies.  The 
facts  bring  the  present  case  within  that  rule." 

2.  That  the  time-tables  amounted  to  a  contract. 
*«  It  seems  to  me,"  said  Wightman,  J.,  "  that  the  pub- 
lication of  these  time-tables  amounted  to  a  })romise  to 
any  one  of  the  public  who  would  come  to  the  station 
and  pay  for  a  ticket,  that  he  shall  have  one  by  the 
train  at  seven." 


POWER  OF  CARRIER  TO  LIMIT  LIABILITY. 


HOLLISTER  v.  NOWLEN. 

[19  Wend.  234:  32  Am.  Dec.  455;  Thomp.  Ld.  Cas.  Carr.  Pass.  4S9.] 

It  was  in  1838,  before  railroads  were  very  numerous, 
that  Hollister  made  a  journey  by  stage  from   Utiea  to 


20(i  LEADINO    CASES    SIMPLIFIED. 

Budalo,  Ne\v  York.  A  traveller  hud  to  t:ike  an  early 
start  in  those  days,  and  the  sun  had  not  yet  risen 
when  Hollister  got  on  the  eoaeh  of  the  Telegraph  Line, 
and  saw  his  trunk  safely  slowed  away  in  the  boot.  In 
all  tlie  stage-otlices  along  the  route,  and  in  most  of 
the  public  houses,  there  were  hung  large  placards  in 
bio;  letters,  with  this  notice  :  "All  ba<r2f:i2;e  sent  or 
carried  on  the  Telegraph  Line  is  at  the  risk  (;f  the 
owners  thereof."  Whether  Hollister  read  any  of 
these  notices  no  one  will  ever  be  able  to  find  out,  for 
no  one  saw  him  reading  them.  To  })c  sure  he  said  he 
never  did,  but  then  he  may  have  lied  about  it.  At 
any  i-ate,  before  the  coach  had  gone  three  miles  on  this 
mem()ra1)lo  journey,  it  was  discovered  that  somebody 
had  climbed  up  at  the  back  of  the  vehicle,  cut  the 
straps  of  the  boot,  and  relieved  the  horses  of  pulliug 
two  hundrcKl  pounds  at  least.  Then  Hollister  sug- 
gested to  the  carrier  the  advisability  of  recou})iiig  him 
for  his  loss,  and  the  carrier  (as  usual)  could  not  see  it 
in  that  light.  So  they  finally  had  to  go  before  the 
Supreme  Court  of  New  York,  and  Nowlen's  lawyer 
and  thattril)unal  discussed  the  matter  in  a  friendly  way. 

"  We  admit,"  said  N'owlen's  lawyer,  "  that  we  are 
prima  facie  insurers  of  the  property  wo  carry,  but 
the  law  lets  us  make  a  different  contract  with  our 
customers." 

The  court.  *'  Yes  ;  but  We  fail  to  discover  any  con- 
tract here." 

Nowlen's  lawyer.  "  When  we  say  :  'Any  one  wanting 
to  travel  on  our  line  must  take  the  risk  of  their  bag- 
gage,' and  a  man  seeing  our  notice,  gets  in  one  of  our 
coaches  with  his  l)aggage,  we  have  a  right  to  persume 
that  he  has  accepted  our  terms." 


BAILMKNTS.  207 

Tlie  court.  "  From  his  li:iviii<j^  said  nothing?  Not  at 
all.  You  have  no  nioro  right  to  assume  from  his 
silence  thiit  lie  consents  than  that  h(;  dissents.  Silence 
sometimes  signilies  assent,  but  not  in  your  case.  The 
law  casts  on  you  legal  obligations  which  a  party  has  a 
ri<^ht  to  insist  on.  If  a  man  ordered  a  coat  from  a 
tailor  after  ho  had  given  him  notice  that  he  would  not 
make  any  coat  for  less  than  $100,  the  assent  of  the 
customer  to  pay  that  sum,  although  it  were  double 
the  real  Aalue  of  the  coat,  might  be  implied.  But  if 
the  tailor  had  been  under  a  legal  obligation  not  only 
to  fui-nish  coats  to  his  customers,  but  to  furnish  them 
at  a  reasonable  price,  no  such  implication  could 
arise." 

And  Nowlen  had  to  pay  for  HoUister's  stolen 
trunk. 


LIABILITY  FOR  INJURY  TO  FREE  PASSENGER. 


PHILADEI^PHIA,    ETC.,   R.    CO.   v.   DEUBY. 

[U  How.  468;  Thomp.  Ld.  Cas.  Carr.  Pass.  SI.] 

One  pleasant  day  about  thirty  years  ago,  Mr. 
Derl)y,  who  was  a  stockholder  in  the  company,  was 
invited  by  the  president  and  officers  of  the  Philadel- 
phia and  Reading  Railroad  to  make  a  little  excursion 
with  them  over  the  line.     Unfortunately   for  him  on 


208  LEADING    CASrS    SIMPLiriKD. 

that  very  (lay,  an  engineer  in  chariro  of  another  loco- 
motive on  the  road,  attempted  an  experiment  Avliich, 
notwithstanding  that  it  is  nnironnly  unsuccessful,  is 
still  repeated  at  regular  iiiterv^als  to  this  day  — ho  tried 
to  have  two  trains  pass  each  otlicr  on  a  single  track. 
The  result  was  disastrous  to  ]\Ir.  Derby  and  to  ]Mr. 
Derby's  bones,  and  he  brought  an  action  against  the 
raih'oad  for  his  injuries.  The  defence  was  that  he  was 
not  a  passenger,  as  ho  Avas  travelling  free  of  cb.n.rge. 
But  it  was  held  that  the  duty  of  a  carrier  to  transport 
safely  does  not  arise  from  the  consideration  paid  for 
the  service,  but  on  the  contrary,  is  imposed  by  the 
law  even  where  the  service  is  gratuitous.  "  When 
carriers  undertake  to  convey  persons  by  the  powerful, 
but  dangerous  agency  of  steam,"  said  the  Supremo 
Court  of  the  United  States,  "  public  policy  and  safety 
require  that  they  be  held  to  the  greatest  possible  care 
and  diligence.  And  whether  the  ccmsideration  for 
such  transportation  be  pecuniary  or  otherwise,  the 
personal  safety  of  the  passengers  should  not  be  left  to 
the  sport  of  chance  or  the  negligence  of  careless 
agents.  Any  negligence  in  such  case  may  well  de- 
serve the  epithet  of  '  gross.'  " 


BAILMENTS.  209 


TRAVELLING    ON   ''FREE  PASS"     WITH    CON- 
DITIONS. 


RAIL.ROAl>  CO.   V.  LOCKAVOOI). 

[17  Wall.  357;  Thomp.  Ld.  Cas.  Carr.  Pass.  378.] 

Most  people  prefer  tni veiling  on  ji  "  pass  "  to  pay- 
ing fare.  It  is  sometimes,  though,  a  little  disappoint- 
ing when  you  have  taken  your  seat  in  the  car,  and 
happen  to  glance  over  the  "  pass,"  to  find  that  on  the 
reverse  side  in  very  small  type  there  is  printed  this 
condition  : 

"The  person  accepting  ihi^  free  ticket  assumes  ad  risk  of  accidents  and 
expressly  agrees  that  the  company  shall  not  be  liable  untler  any  circum- 
stances whether  of  negliffence  of  their  af/ents  or  othenvise,  for  any  injury  to  the 
person  or  for  any  loss  or  injury  to  the  property  of  the  passenger  using  this 
ticket." 

The  «' deadhead"  will  doubtless  be  gratified  to 
learn  that,  so  far  as  the  Avords  italicized  are  concerned, 
the  American  courts  arc  decidedly  averse  to  giving  the 
company  the  benefit  of  them.  The  litigation  which 
Mr.  Lockwood  carried  on  some  years  ago  has  done 
much  to  firmly  establish  this  principle.  He  took  a 
train  on  the  New  York  Central  Railroad  on  just  such 
a  ticket  with  just  such  a  condition,  which  he  had  re- 
ceived from  one  of  the  officers  of  the  company,  not  as 
an  expression  of  friendship,  but  because  Mr.  Lock- 
wood  was  a  drover  and  was  shipping  a  good  many 
head  of  stock  over  the  line.  There  was  an  "  acci- 
dent"  and  Mr.  Lockwood  was  hurt.  He  brought  an 
action  and  recovered  a  verdict.  The  railroad,  as  is  the 
custom  of  railroads,  iought  the  case  as  far  as  was  pos- 


210  LEADING    CASES    SIMPLIFIED. 

Bible  —  whicli  in  this  instance  was  as  far  as  the  Supreme 
Court  of  the  United  States.  But  there  Mr.  Justice 
Bradley,  in  a  very  able  and  learned  opinion  whicli  the 
student  should  not  fail  to  read,  affirmed  the  judgment 
in  favor  of  Mr.  Lockwood.  The  law  on  the  subject 
he  summed  up  thus : 

1.  A  common  carrier  cannot  lawfully  make  a  con- 
tract i'or  exemption  from  responsibility,  when  such 
exemption  is  not  just  and  reasonable  in  the  eye  of 
the  law. 

2.  It  is  not  just  and  reasonable  in  the  eye  of  the 
law,  for  a  common  carrier  to  stipulate  for  exemption 
from  responsibility  for  the  negligence  of  himself  or  his 
servants. 

3.  These  rules  apply  both  to  carriers  of  goods  and 
carriers  of  passengers  for  hire,  and  with  special  force 
to  the  latter,^ 


WHO  CARRIER  MAT  REFUSE   TO  CARRY. 


THURSTOX  V.  UNION  PACIFC  R.  CO. 

[4  Dill.  321 ;  Thorap.  Ld.  Cas.  Carr.  Pass.  10.] 

Thurston  was  a  bad  man  to  meet  on  a  railroad  train. 


1  As  Lockwood's  pass  was  given  him  as  a  part  of  the  transaction 
of  carrying  his  stock,  it  was  held  that  he  was  a  passenger  for  hire 
as  much  as  though  he  had  paid  his  fare.  The  court  did  not  there- 
fore decide  what  Avould  have  been  the  result  had  he  been  a  purely 
gratuitous  passenger.  Other  courts,  however,  have  decided  that 
this  makes  no  difference.     Lawson,  Cont.  Carr.,  sects.  212-221, 


BAILMENTS.  211 

And  yet  travellers  were  very  apt  to  run  against  him, 
for  his  business  called  him  there  very  frequently.  His 
sole  stock  in  trade  was  three  pieces  of  pastel)oard,  and 
ke earned  his  living  by  making  small  bets  with  unsophis- 
ticated grangers,  whom  ho  generally  met  in  the  smoking 
car,  concerning  the  identity  of  a  particular  card  of  the 
three.  After  the  game  was  over,  and  when  the  shek- 
els of  the  rural  inhabitant  were  deposited  in  the  pocket 
of  Thurston,  what  used  to  puzzle  the  granger  was  how 
it  came  about  that  whenever  he  bet  a  small  sum,  he 
could  generally  locate  the  right  card,  and  whenever  he 
put  up  his  pile,  he  always  selected  the  wrong  one. 
It  was  this  sort  of  thing  that  gave  Thurston  the  name 
of  "  montc-man,"  and  that,  one  day  having  purchased 
his  ticket  on  the  defendant's  road,  caused  the  con- 
ductor of  the  train  to  prevent  him  from  boarding  it. 
The  suit  which  he  brought  against  the  company  gave 
the  court  an  o[)i)ortuiiity  of  stating  in  a  very  lucid 
way  the  law  concerning  the  right  of  a  carrier  to  refuse 
to  carry. 

And  here  it  is  in  a  dozen  or  more  lines :  "  The  rail- 
way company  is  bound  as  a  common  carrier,  when  not 
overcrowded,  to  take  all  proper  persons  who  may  ap- 
ply for  transportation  over  its  line,  on  their  comjjlving 
with  all  reasonable  rules  of  the  company.  But  it  is  not 
bound  to  carry  all  persons  at  all  times  or  it  might  be 
utterly  unable  to  protect  itself  from  ruin.  It  would 
not  bo  obliged  to  carry  one  whose  ostensible  business 
might  bo  to  injure  the  line  ;  one  fleeing  from  justice  ; 
one  going  u[)on  the  train  to  assault  a  passenger,  com- 
mit larceny  or  robbery,  or  for  the  purpose  of  interfer- 
ing with  the  proper  regulations  of  the  company,  or  for 
gambling  in  any  form  or  committing  smy  crime  ;  ncn- is 


212  LEADING    CASES    SIMPLIFIED. 

it  bound  to  carry  persons  infected  with  contagious 
diseases  to  the  danger  of  other  passengers.  The  i)crson 
must  be  upon  lawful  and  legitimate  business.  Hence 
defendant  is  not  bound  to  carry  persons  who  travel  for 
tlio  purpose  of  gambling.  As  gambling  is  a  crime 
under  the  State  laws,  it  is  not  even  necessary  for  the 
company  to  have  a  rule  agtiinst  it.  It  is  not  l)ound  to 
furnish  facilities  for  carrying  out  an  unlawful  pur[)ose. 
Necessary  force  may  be  used  to  prevent  gamblers  from 
enterinir  trains,  and  if  found  on  them  en2:a£^ed  in  sfam- 
bling,  and  refusing  to  desist,  they  may  be  forcibly  ex- 
pelled." 

So  the  moiite-man  could  not  get  any  damages ; 
but  as  he  had  j^wiid  for  his  ticket,  and  the  com- 
pany had  not  refunded  him  the  money,  the  judge 
thought  the  jury  should  make  that  up  to  him,  a^nd 
they  gave  him  a  verdict  for  $1.74. 


WHAT  IS  ''BAGGAGE''  FOE    WHICH  CARRIER 
IS  RESPONSIBLE. 


NEW  YORK  CEXTRAt.   R.  CO.  v.  FRAL.OFF. 

[100  U.  S.  24;  Thomp  Ld.  Cas.  Carr.  Pass.  502.] 

A  Russian  countess  of  large  wealth  and  high  posi- 
tion, after  taking  in  London  and  Paris,  concluded  not 
to  die  till  she  had  seen  America.     The  pampered  aris- 


BAILMENTS.  213 

tocrncy   of  Europe    are  not  content  to  travel  with  a 
carpot-sack ;  und  so   she  must  bring  along  with  her 
half  a  dozen  trunks,  bursting   with  silks,  and  jewels, 
aiut  laces,  and  fine  linens,  in  order  that  she  might  not 
bo  without  something  to  wear  if  she  should  want  to  go 
to  the  opera  in  New  York,  or  be  invited  out  to  dinner 
in  St.  Louis.     Her  laces  she  was  particularly  proud  of, 
for  they  had  been  made  by  her  ancestors  upon  their 
estates  in  Russia.     She  arrived  in  New  York  in  good 
order,  and  so  did  her  trunks  ;  and  all  would  have  been 
well  had  she  not  made  up  her  mind  to  visit  Chicago, 
for  on  lier  way  thither  two  of  her  trunks  (which  was 
all  she  dared  trust  in  that  wicked  city)  came  to  grief. 
On  tlio  train  between  Albany  and  Niagara  Falls,  some 
ruthless  Nihilist  ransacked  her  wardrobe,  and  failed  to 
return  two  hnndred  yards   of  her  much-})rized   lace. 
Then    the  countess   said    to    the    railroad    company, 
**give  me  back  the  needlework  of  my  grandmothers, 
or  give  me  roubles."     But  the  railroad  company  could 
not,  or  wfuikl  not,  and  then  the  countess  brought  suit, 
and  a  jury  thought  that  the  laces  were  worth  at  least 
$10,000.     The  company  appealed,  but   the   Supreme 
Court  of  the  United  States  decided  that  they  mnst  pay 
the  $10,000.     Baggage  for  which  you  are  liable  as  an 
insurer,  said  the  court  to  the  company,  is  none  the  less 
baggage  because  it  is  extensive  or  valuable.     The  sole 
question   is,   was    it    suited    to  the  condition   of   its 
owner.     If   a    commercial    traveller,    or    a    country 
school-marm,  were  to  carry  thousands  of  dollars  of  ex- 
pensive lace   in  her  trunk,  and  it  were  to  be  lost  on 
your  road,  you  would   not  be   liable  ;  but  here,  your 
passenger  was    a  countess,   and    laces    are    made    for 


214  LEADING    CASES    SOirLIFIED. 

countesses,  and  are  as  necessary  to  them  as  plumage 
to  peacocks.  If  you  had  notified  all  your  ])assengers 
that  you  would  not  carry  more  than  $100  Avorth  of 
baggage  without  extra  payment,  or  if  you  had  asked 
the  countess  the  value  of  her  trunks,  and  she  had  said, 
*' Oh,  not  much,"  it  would  have  been  difierenl  *,  but 
you  did  not,  and  she  was  not  bound  to  give  you  any 
information  you  did  not  ask  for. 


NEGLIGENCE.  215 


XI Y.  —  ^N'egligexce. 


INJURY  RESULTING    FROM    UNINTENTIONAL 
ACCIDENT. 


BROWX  V.  KEXDALL. 

[6  Cush.  292.] 

The  trouble  in  this  case  came  from  a  clog  fight. 
The  dogs  of  Brown  and  Kendall  respectively  were 
fighting,  and  the  latter,  in  the  laudable  purpose  of  en- 
deavoring to  separate  them  with  the  aid  of  a  long 
stick,  unfortunately  put  out  the  eye  of  Brown  who, 
unobserved  of  Kendall,  was  standing  behind  iiini. 
Brown  brought  an  action,  and  the  question  was 
whether  a  person  is  liable  for  a  purely  accidental  and 
unintentional  injury  which  he  may  do  to  another. 
The  court  decided  in  the  negative.  "The  plaintiff," 
said  Chief  Justice  Shaw,  "  must  come  prepared  with 
evidence  to  show  cither  that  the  intention  ivas  unlaw- 
ful or  that  the  defendant  ivas  in  faidt ;  for  if  the  injury 
was  unavoidable,  and  the  conduct  of  the  defendant 
was  free  from  blame,  he  will  not  be  liable.  If  in  the 
prosecution  of  a  lawful  act,  a  casualty,  purely  acci- 
dental, arises,  no  action  can  be  supported  for  an  injury 
arising  therefrom." 


21(3  LEADING   CASES   SIMPLIFIED. 


ONE  MUST  so  USE  HIS  PROPERTY  AS  NOT  TO 
INJURE  HIS  NEIGHBOR 'S. 


FLETCHER   v.  RYLAXDS. 

P  Hurl.  &  C.  794;  L.  R.  1  Exch.  205;  L.  R.  3  H.  L.  330;  1  Thomp. 
Ld.  Cas.  Neg.  2.] 

Of  the  modern  English  cases,  on  the  law  of  negli- 
gence, this  one  is  perhajis  the  most  important  in  the 
reports.  Messrs.  Rylands  &Co.,  mill-owners,  wanted 
a  reservoir  on  their  land,  and  like  carefnl  men,  em- 
ployed a  competent  engineer,  and  first-class  workmen 
to  make  it.  During  its  construction  the  workmen 
came  upon  some  old  vertical  mine  shafts  of  the  exis- 
tence of  which  no  one  was  previously  aware.  These 
they  carefully  filled  up  with  soil.  But  when  the  water 
came  to  be  put  in  the  reservoir,  it  was  just  like  i)utting 
it  into  an  empty  flower-pot.  It  ran  through  and  did  a 
world  of  mischief  to  the  neighboring  mines  of  ^Ir. 
Fletcher,  who  instituted  legal  proceedings. 

Rylands  &  Co.  defended  the  action,  thinking  that  as 
they  had  employed  competent  persons  to  construct  the 
reservoir,  they  would  not  be  hekl  responsible.  But 
here  they  were  mistaken  ;  they  were  compelled  to  com- 
pensate Mr.  Fletcher  for  his  damage.  **  If  a  person," 
said  the  court,  "brings  or  accumulates  on  his  land 
anything  which,  if  it  should  escape,  may  cause  dam- 
age, ho  does  so  at  his  peril.  If  it  does  escape  and 
cause  damage,  he  is  responsible,  however  careful  he 


NEOHOENCE.  217 

may  have  been,  and  whatever  precautions  he  may  have 
taken  to  prevent  the  damage."  ^ 


1  There  is  a  difference  of  opinion  in  tlie  American  courts  con- 
ceruin;;  tlie  justness  of  tliis  decision.     In  some  States  it  is  followed 
in  others  it  is  not.     Qualified,  however,  as  it  has  been  by  two  later 
decisions,  the  rule  in  Fletcher  v.  Rylands,  strikes  the  writer  as  un- 
assailable. 

The  first  qualification  was  laid  down  in  Nichols  v.  Marsland, 
L.  R.  10  Exch.  255;  2  Exch.  Div.  1.  Mrs.  Marsland  was  a  for- 
tunate proprietor  of  some  ornamental  lakes  in  the  county  of 
Chester.  She  had  not  made  the  lakes  herself.  They  had  ex- 
isted time  out  of  mind,  and  had  always  borne  the  character 
of  bcin2j  sober,  respectable,  well-behaved  lakes.  But  on  the 
18th  of  June,  1872,  there  came  a  tremendous  storm,  the  like  of 
which  the  oldest  inhabitant  could  not  remember.  The  rains  de- 
scended, the  floods  came,  and  Mrs.  Marsland's  lakes  burst  their 
fetters,  and,  in  the  riot  of  their  new-found  liberty,  swept  into 
eternity  two  or  three  county  bridges.  Nichols  was  the  county  sur- 
veyor of  Cheshire,  and  brought  this  action  for  the  damage  done.  It 
was  argued  for  the  surveyor,  with  much  plausibility,  that  Mrs. 
Marsland  was  in  the  same  position  as  a  person  who  keeps  a  mis- 
chievous animal  with  knowledge  of  its  propensities,  and  therefore 
that  inquiry  as  to  whether  she  had  been  negligent  or  not  was  need- 
less—  she  kept  the  lakes  at  her  peril.  It  was  held,  however,  that 
as  the  lakes  had  been  carefully  constructed  and  maintained,  and 
the  downpour  of  rain  was  so  extraordinary  as  to  amount  to  vis 
major,  the  county  bridges  might  build  themselves  up  —  it  was  no 
concern  of  the  old  lady's.     Shirley's  Ld.  Cas.  208. 

Several  years  after,  in  the  case  of  Box  v.  Jubb,  4  lixch.  Div.  76 ; 
27  Week.  Rep.  415,  the  same  court  held,  that  for  the  wrongful  act 
Of  a  third  party,  which  set  in  motion  the  damage,  the  proprietor  was 
no  more  responsible  than  for  vis  major. 


218  LEADING    CASES    SIMPLIFIED. 


LIABILITY  FOR  INJURIES  BY  ANIMALS. 


MAY  V.  BURDETT. 

[9  Q.  B.  101 ;   1  Thomp.  Ld.  Cas.  Neg.  174.] 

It  is  riithcr  dangerous  to  keep  a  monkey,  especially 
if  you  know  that  it  has  a  fondness  for  biting  people. 
Mr.  Burdctt  found  this  out  after  a  little  litigation 
which  took  place  between  himself  and  Mr.  May.  The 
former  owned  a  monkey,  which  one  day  bit  Mrs.  May. 
The  husl)and  was  indi2;nant  and  brouirht  an  action 
against  the  owner.  The  question  was  whether  it  made 
any  difference  that  Mr.  Burdett  had  not  been  guilty  of 
any  negligence  in  securing  or  taking  care  of  it.  The 
court  held  that  it  did  not,  as  "  the  gist  of  action  is  the 
heeping  of  the  animal  after  knowledge  of  its  mischiev- 
ous propensities;"  and  Burdett  had  to  pay  £50  for 
the  injury  to  Mrs.  May.^ 


^  The  liability  of  owners  of  animals  for  their  hurting  people  is 
pretty  plain.  If  a  man  has  a  domestic  beast,  such  as  a  dog,  a 
horse,  or  a  cow,  he  is  not  generally  responsible  for  any  injury  it 
may  cause.  But  if  he  knows  that  it  is  of  a  mischievous  disposition 
and  is  lil^ely  to  do  damage,  then  he  keeps  it  at  his  peril.  If  he 
wants  to  run  no  risk  he  had  better  shoot  it  at  once,  for  no  matter 
how  careful  he  may  be,  he  is  answerable  for  any  hurt  it  may  do  to 
any  person.  Long  ago  a  distinguished  judge  laid  it  down  that  every 
dog  was  entitled  to  one  bite,  because  it  took  something  like  this  to 
give  the  owner  notice  that  he  was  a  bad  dog. 

On  the  other  hand,  if  a  man  keeps  a  dangerous  animal,  one 
ferae  naturae,  as  the  books  call  them,  such  as  a  lion,  or  a  bear,  or 
a  wolf,  he  is  answerable  in  the  same  manner  as  the  owner  of  a  dog 
accustomed  to  bite.  The  lion  or  bear  is  not  entitled  to  one  bite, 
for  the  owner  knows  from  tlie  beginning  what  his  pet  will  do  if  he 
only  gets  a  chance. 


NEGLIGENCE.  219 

SELLING  POISON   WITH  HARMLESS  LABEL. 


TH03IAS  V.  WINCHESTER. 

[G  N.  Y.  397 ;  1  Thomp.  Ld.  Cas.  Neg.  224.] 

Mr.  Thomas  walked  one  day  into  a  country  drug- 
store kept  by  a  Dr.  Foord  and  asked  the  druggist  for 
some  extract  of  dandelion,  which  the  family  physi- 
cian had  prescribed  for  Mrs.  T.  The  druggist  took 
down  from  a  shelf  a  jar  labelled  ^*  j  lb.  Dandelion^ 
prepared  hij  J.  A.  Gilbert^  No.  108  John  Street^  N. 
Y.,  Jar.  8  oz.,''  and  gave  Mr.  Thomas  the  quantity 
called  for.  This  the  latter  gave  to  his  wife,  but  with 
nearly  fatal  results,  for,  as  it  afterwards  turned  out,  it 
was  belladonna,  a  deadly  poison,  that  the  jar  really 
contained.  The  druggist  was  quite  innocent  in  the 
matter,  for  it  had  been  sold  to  him  for  dandelion  by 
Aspinwall,  a  druggist  in  New  York,  who,  in  turn,  had 
purchased  it  as  such  from  Winchester,  a  drug  manu- 
facturer. The  latter  had  not  manufactured  the  extract 
in  this  particular  jar,  but  had  purchased  it,  and  i)ut  it 
up  for  the  trade  and  la])elled  it  with  Gilbert's  name, 
who  was  employed  by  him  as  a  clerk.  ]\Ir.  Thomas 
now  brought  an  action  against  Winchester  for  the  in- 
juries sustained  by  his  wife  in  taking  the  poison. 
Winchester  tried  to  escape  liability  on  the  ground  that 
there  was  no  privity  between  him  and  the  plaintilF,  the 
drug  having  previously  passed  through  so  many  hands. 

**  If  A,"  argued  Winchester's  counsel,  "  build  a 
waffon,  and  sell  it  to  B,  who  sells  it  to  C,  and  C  hires 


220  LEADING   CASES    SIMPLIFIED. 

it  to  D,  who,  in  consequence  of  the  negligence  of  A 
in  l)uilding  it,  is  overturned  and  injured,  D  cannot  re- 
cover damages  against  A,  the  builder,  for  A's  obliga- 
tion to  ])uild  the  wagon  properly  arises  solely  out  of 
his  contract  with  B."  The  court  admitted  that  this 
was  so,  but  the  present  case,  they  said,  stood  on  a 
different  footing.  Winchester's  liability  arose,  not  out 
of  any  contract  or  privity  between  him  and  the  person 
injured,  but  out  of  the  duty  which  the  law  imposed  on 
him  to  avoid  acts  in  their  nature  dangerous  to  the  lives 
of  others.  Therefore,  a  dealer  in  drugs  or  medicines 
who  carelessly  labels  a  deadly  poison  as  a  harmless 
medicine,  and  sends  it  so  labelled  into  market,  is  liable 
to  all  persons  who,  without  fault  on  their  part,  are  in- 
jured ])v  using  it  in  consequence  of  the  false  label. 
And,  therefore,  Winchester  was  liable  for  the  injury  to 
the  wife  of  Thomas. 


REMOVING  SUPPORT  OF  LAND. 


PANTON  V.  HOLLAISD. 

[17  Johns.  02;    8    Am.  Dec.  3()!);    1  Thomp.  Ld.  Cas.  Neg.  249.] 

Panton  and  Holland  were  owners  of  contiguous  lots 
on  Warren  Street,  in  New  York  City.  In  the  course 
of  erecting  a  house  on  his  lot,  Holland  dug  some  dis- 
tance below  the  foundations   of  Panton's  house,  and 


NEGLIGENCE.  221 

the  result  was  that  one  of  the  corners  of  Paiiton's 
house  settled,  the  walls  were  cracked  and  much  injury 
was  done  to  the  building.  For  this,  Panton  ]>rought  an 
action,  claiming  that  ho  liad  a  right  to  lateral  sui)port 
from  the  land  of  his  neighbor,  not  only  for  his  own 
soil,  but  also  for  the  buildings  which  he  put  up  on  it, 
and  that,  having  removed  this  lateral  support,  Panton 
Was  absolutely  liable  for  the  damages  caused  thereby. 
But  the  court  held  that  if  injury  is  sustained  to  a 
building  in  consequence  of  the  withdrtiwal  of  the 
lateral  support  of  the  neigh])()ring  soil,  done  with 
reasonable  skill  and  care  to  avoid  unnecessary  injury, 
there  can  be  no  recovery,  and  therefore,  if  HoUand 
had  not  been  negligent  in  his  digging,  he  could  not  be 
made  to  pay  for  the  damage  to  Panton' s  house. 


PERSONS  COMING   ON  ANOTHER* S  PREMISES. 


INDERMAUK  V.  DAMES. 

[L.  R.  1  C.  P.  274;  L.  R.  2  C.  P.  311;   1  Thomp.  Ld.  Cas.  Neg.  283.] 

Mr.  Dames  was  the  owner  of  a  sugar  refinery,  and 
emi)loyed  one  Duckham,  a  gas-titter,  to  improve  his 
gas-meter.  Duckham  got  his  work  done  by  a  certam 
Saturday  evening ;  but  it  was  arranged  that  ho  or  one 
of  his  workmen  should  come  on  the  following  Tuesday 
to  see  if  the  improvement  was  working  satisfactorily. 
Accordingly,  on  the  Tuesday  the  plaintitF,  Indermaur, 


222  LEADING   CASES    SIMPLIFIED. 

presented  himself  as  Duckliain's  representative  to  look 
at  the  gas-meter.  Now  it  happened  that  on  the  prem- 
ises, and  level  with  the  floor,  there  was  an  unfenced 
shaft  nsed  for  the  purpose  of  hauling  up  ])alcs  of  sugar. 
"When  the  shaft  was  being  used  for  tliat  purpose,  it 
■was  usual  and  necessary  that  it  should  be  unfenced ; 
but  Avhen  not  being  used  there  was  no  particular  rea- 
son why  it  should  not  be  fenced.  The  experienced 
case-reader  will  not  be  surprised  to  hear  that  Inder- 
maur  was  unfortunate  —  or  fortunate  —  enough  to  fall 
through  this  shaft.  The  sugar  people  denied  their 
liability  to  him,  contending  that  he  was  a  mere  licensee, 
and  that  they  were  under  no  particular  duty  towards 
him.  It  was  held,  hoAvever,  that  he  was  not  a  mere 
licensee,  as  he  had  come  on  lawful  business,  and  that, 
as  the  hole  was  from  its  nature  unreasonably  danger- 
ous to  persons  not  usually  employed  on  the  premises, 
the  defendant  Avas  liable.  The  occupier  of  premises, 
said  the  court,  is  not  bound  to  see  that  his  i)remises  are 
in  such  a  safe  condition  that  a  trespasser  or  a  mere 
licensee  coming  upon  them,  will  be  in  no  danger  of 
breaking  his  bones  ;  but  with  respect  to  a  person  who 
has  come  on  lawful  business,  and  on  the  invitation  of 
the  occupier,  it  is  settled  law  that  he  "  using  reasona- 
ble care  on  his  own  part  for  his  own  safety  is  entitled 
to  expect  that  the  occupier  shall,  on  his  part,  use  rea- 
sonable care  to  prevent  damage  from  unusual  danger 
which  he  knows  or  ought  to  know ;  and  that  where 
there  is  evidence  of  neglect,  the  question  whether  such 
reasonable  care  has  been  taken  by  notice,  lighting, 
cfuardiuir  or  otherwise,  and  whether  there  was  contrib- 
utory  negligence  in  the  sufferer,  must  be  determined  by 
a  jury  as  matter  of  fact." 


NEGLIGENCE.  223 


INJURIES   FROM  NON-REPAIR  OF  BUILDINGS. 


TODD  V.  FLIGHT. 

[9  C.  B.  (N.  s.)  378.] 

The  laic  lamented  Mr.  Flight — the  memory  of  the 
litigious  is  blessed  —  bought  a  shaky  old  house  next 
door  to  a  church.  This  he  let  to  Benjamin  Batt,  who 
had  occupied  it  but  a  short  time  when  it  fell  down  on 
the  church.  For  this  injury  an  action  was  brought 
against  the  landlord.  Mr.  Flight  tried  to  make  it  out 
that  Batt,  the  tenant,  was  the  responsible  party,  but 
the  court  held  that,  as  Flight  had  let  the  house  when 
he  knew  it  to  be  in  a  very  dangerous  condition,  and  as 
the  building  had  fallen  through  old  age,  and  not 
through  the  default  of  the  tenant,  it  was  he,  the  land- 
lord, who  must  Jiay.'^ 


'  The  general  rule  is  that  the  occupier,  and  not  his  landlord,  is 
responsible  for  any  injury  arising  to  a  third  person  through  the 
premises  being  out  of  repair.  And  it  does  not  much  matter  how 
careful  he  has  been,  if  he  has  not  succeeded  in  making  his  premises 
safe.  A  year  or  two  ago  a  good  old  woman  was  toddling  down  a 
London  street  one  afternoon  when  a  large  lamp,  which  was  sus- 
pended from  the  front  of  a  house  and  projected  several  feet  across 
the  pavement,  fell  upon  her  and  injured  her  severely.  Tlie  occu- 
pier of  tlie  house  was  tenant  under  a  lease,  and  a  short  time  before 
had  noticed  that  the  lamp  was  getting  out  of  repair,  and  had  em- 
ployed a  competent  contractor  to  put  it  right.  lie  thought,  there- 
fore, that  he  had  done  as  much  as  could  be  expected  of  him.  He 
thought  wrong.  "The  question  is,"  said  Lush,  J.,  "what  is  the 
duty  of  an  occupier  who  has  a  lamp  in  the  position  of  that  of  the 
defendant  ?    Is  it  his  duty  absolutely  to  maintain  that  lamp  in 


224  LEADING   CASES    SIMPLIFIED. 


MES  IPSuE  LOQUITUR  — PRESUMPTION  OF 
NEGLIGENCE  FROM  ACCIDENT. 


BYllNE   V.   BOADLE. 

[2  Tlurl.  &  C.  722;  Big.  Ld.  Cas.  Torts,  578.] 

One  pleasant  day  in  Jul}',  Mr.  Byrne  was  walking 
down  a  London  street,  when  a  barrel  of  flour  fell 
.from  a  Avindow  of  a  building  lie  was  passing,  plump  on 
his  head.  The  subsequent  proceedings  interested  Mr. 
Bvrne  no  more,  he  was  taken  home  in  a  hack,  and  it 
was  some  time  before  he  Avas  able  to  get  out  of  the 
house.  When,  however,  he  had  sufficiently  recovered 
to  visit  the  scene  of  the  accident,  he  found  that  the 
building  Avas  occupied  by  Mr.  Boadle,  a  flour-dealer, 
and  that  it  was  one  of  Mr.  Boadle' s  barrels  that  had 
kept  him  at  home  so  long.  Mr.  Byrne  brought  an  ac- 
tion at  once  against  the  flour-dealer,  alleging  that  the 


proper  repair,  or  to  employ  a  competent  person  to  repair  it?  I  ap- 
prehend £hat  the  Avider  duty  is  incumbent  on  the  occupier."  And 
so  they  all  apprehended,  and  the  plaintiff  recovered.  Tarry  v. 
Ashton,  1  Q.  B.  Div,  100.  But  sometimes  the  landlord  is  the  man  to 
loolv  to.  "There  are  only  two  AVays,"  it  is  said  in  a  recent  Eng- 
lish case  (Nelson  v.  Liverpool  Brewery  Co.,  2  C.  P.  Div.  210),  "in 
which  landlords  or  owners  can  be  made  liable  in  the  case  of  an  in- 
jury to  a  stranger  by  the  defective  repair  of  premises  let  to  a  tenant, 
the  occupier,  and  the  occupier  alone,  being  prima  facie  liable,  — 
first,  iu  the  case  of  a  contract  by  the  landlord  to  do  the  repairs, 
where  the  tenant  can  sue  him  for  not  repairing;  secondly,  iu  the 
case  of  a  misfeasance  by  the  landlord,  as  for  instance  where  h*?  lets 
premises  iu  a  ruinous  condition."  Todd  v.  Flight  illustrates  the 
second  exception.     Shirley  Ld.  Cas.  20G. 


NEGLIGENCE.  225 

latter,  by  his  servants,  had  so  negligently  moved  his 
barrels  as  to  injnro  him  to  the  extent  of  $250  at  least. 
The  flour-dealer  objected  that  some  evidence  of  negli- 
gence on  his  part  mnst  be  shown,  but  the  court  held 
that  from  the  mere  fact  of  the  accident  a  presumption 
of  negligence  arose.  "  It  is  the  duty  of  persons  who 
keep  barrels  in  a  warehouse,"  said  Chief  Baron  Pol- 
loch,  "  to  take  care  that  they  do  not  roll  out,  and  I 
think  that  such  a  case  would,  beyond  all  doubt, 
aflbrd  prima  facie  evidence  of  negligence.  A  barrel 
could  not  roll  out  of  a  warehouse  without  some  neg- 
ligence, and  to  say  that  a  plaintiff  who  is  injured  by  it 
must  call  witnesses  from  the  warehouse  to  prove  neg- 
ligence, seems  to  me  preposterous.  So,  in  the  build- 
ing or  repairing  a  house,  or  putting  pots  on  the  chim- 
neys, if  a  person  passing  along  the  road  is  injured  by 
something  falling  upon  him,  I  think  the  accident  alone 
would  hG  prima  facie  evidence  of  negligence." 


RESPONSIBILITY    OF    MASTER    FOR    WILFUL 
ACTS  OF  SERVANTS. 


McMAXUS  V.  CRICKETT. 

[1  East,  lOG;  2  Thomp.  Ld.  Cas.  Neg.  865.] 

Mr.  Crickett's  servant  Brown  had  a  grudge  against 
his  neighbor  McManus,  and  he  only  waited  for  a  chance 


22(3  LEADING   CASES   SIMPLIFIED. 

to  injure  one  of  the  McManus  family  in  some  way.  At 
last  an  opportunity  offered  itself.  Driving  home  his 
master's  carriage  one  evening  about  dusk,  Brown  was 
delighted  to  see  ahead  of  him  the  old  four-wheeled 
chaise  belonging  to  Mr.  McManus,  and  seated  in  it  was 
the  owner  himself,  alone  and  unattended.  Brown 
whipped  up  his  team  and  dashed  right  into  the  chaise, 
upsetting  it  in  the  middle  of  the  road  and  landing  Mr. 
McManus  on  an  adjoining  door-step.  Brown  being, 
of  course,  an  irresponsible  fellow  whom  no  civil  judg- 
ment would  have  disturbed  in  the  least,  Mr.  McManus 
brought  an  action  against  Mr.  Crickctt,  claiming  that, 
although  the  latter  was  not  present  at  the  time,  he 
was  nevertheless  answerable  for  the  wilful  and  mali- 
cious act  of  his  servant.  But  the  court  did  not  agree 
to  this,  because  they  said  that  when  a  servant  quits  sight 
of  the  object  for  which  he  is  employed,  and  without 
having  in  view  his  master's  orders  pursues  that  which 
his  own  malice  suggests,  he  no  longer  acts  in  pursu- 
ance of  the  authority  given  him,  and  his  master  will 
not  be  responsible  for  such  act.^ 


^  A  principal  or  master  is  answerable  in  damages  for  wrongs 
committed  by  his  agent  or  servant  while  acting  about  his  business. 
This  is  the  general  rule.  But  in  order  that  this  may  be  so  the  ser- 
vant must  have  been  acting  in  the  course  of  his  regular  employ- 
ment. If  while  driving  me  or  driving  on  my  business  my  servant 
negligently  injures  a  person,  I  am  liable.  But  if  the  enterprise  is  en- 
tirely the  servant's,  —  if,  for  instance,  he  takes  his  master's  carriage 
without  leave,  for  purposes  entirely  his  own,  —  the  master  is  not  re- 
sponsible. One  May  Saturday  in  18G9,  a  wine  merchant  sent  a  clerk 
and  carman  with  a  horse  and  cart  to  deliver  wine  at  B.,  and  to  bring 
back  a  quantity  of  empty  bottles  to  the  offices,  which  were  in  M. 
On  the  homeward  journey,  after  crossing  London  Bridge,  they 
should  have  turned  to  the  right ;  instead  of  that  they  turned  to  the 
left,  and  went  in  the  opposite  direction  on  some  private  matter  of 


NEGLIGENCE.  227 


EMPLOYER  NOT  LIABLE  FOR  NEGLIGENCE  OF 
INDEPENDENT  CONTRACTOR. 


HILLIARD  V.  RICHARDSON. 

[3  Gray,  340;  2  Thomp.  Ld.  Cas.  Neg.  868.] 

Mr.  Richardson  made  an  as^reement  with  a  contrac- 
tor  named  Shaw  that  the  latter  should  make  some  al- 
terations on  a  building  of  his,  in  Cambridge,  Mass. 
In  pursuance  of  this  agreement  one  of  Shaw's  work- 
men  who  was  engaged  in  hauling  lumber  to  the  place, 


the  clerk's.  While  thus  going  quite  against  their  orders  they  ran 
over  a  child.  It  was  held  that  the  wine  merchant  was  not  respon- 
sible.    Whatman  v.  Pearson,  L.  R.  3  C.  P.  422. 

And  a  master  is  not  responsible  for  the  wilful  and  malicious  act 
of  his  servant  while  acting  in  his  employment,  but  which  wilful  and 
malicious  act  he  has  neither  ordered  nor  confirmed.  McManus  v. 
Crickctt  illustrates  this  exception.  The  student,  however,  should 
be  careful  to  note  that  this  doctrine  does  not  interfere  with  the 
cases  where  a  master  is  held  liable  for  the  negligent  or  malicious  act 
of  a  servant,  who  had  no  purpose  but  the  execution  of  his  master's 
orders.  For  example,  when  a  master  authorizes  his  servant  to  use 
force  about  his  business,  the  former  is  liable  when  the  latter  uses 
more  force  than  the  master  intended  he  should.  A  railroad  com- 
pany instructs  its  conductors  that  if  a  passenger  will  not  pay  his 
fare  they  are  to  eject  him,  using  force  if  he  will  not  go  without  it. 
Under  this  authority  a  conductor  demands  a  fare  from  a  passenger 
who  refuses  to  pay  (perhaps  because  he  has  already  bought  a 
ticket  which  he  has  lost,  or  for  some  other  reason),  and  who  refuses 
to  leave  the  car.  The  conductor  calls  the  brakeman,  and  they  pro- 
ceed to  eject  him,  but  in  doing  so  they  use  far  more  force  than  is 
necessary  and  the  passenger  is  injured.  For  this  act,  though  wil- 
ful and  malicious  on  the  servants'  part,  the  company  will  bo  liable. 
See  2  Thomp.  Ld.  Cas.  Neg.  884-890. 


228  LEADIXG   CASES    SIMPLIFIKD. 

very  nc2fligontly  allowed  some  of  it  to  remain  in  the 
street  over  night.  The  consequence  was  that  when 
Mr.  Hilliard  drove  along  the  street  that  evening,  his 
horse  took  fright  at  the  pile  there,  and  the  driver  was 
thrown  from  his  wagon  and  badly  hurt.  Hilliard 
brought  an  action  against Kichardson  for  damages,  but 
without  success,  it  being  held  that  Shaw  being  an  in- 
dependent contractor,  he,  and  not  Richardson,  had  the 
control  of  the  workman,  and  if  any  one  was  liable  it 
was  Shaw.i 


^  The  law  on  this  subject  was  very  consiscly  stated  by  an  emi- 
nent English  judge  some  ten  years  ago.  "  In  ascertaining  who  is 
liable  for  the  act  of  a  wrong-doer,"  said  he,  "j'ou  must  look  to  the 
wrong-doer  himself  or  to  the  first  person  in  the  ascending  line  who  is 
the  employer  and  has  control  over  the  work.  You  cannot  go  further 
back  and  make  the  employer  of  that  person  liable."  Willes  J.,  in 
Murray  v.  Currie,  L.  R.  G  C.  P.  24.  But  as  there  are  exceptions 
to  every  rule,  we  are  prepared  to  find  some  here ;  and  the  student 
should  note  the  following  cases  as  being  the  most  important  ex- 
ceptions to  the  rule  that  for  the  negligence  of  an  independent  con- 
tractor the  employer  is  not  answerable :  — 

1.  Where  the  employer  personally  interferes.  The  proprietor  of 
some  newly  built  houses  had  his  attention  drawn  by  a  policeman  to 
the  fact  that  a  contractor  he  had  employed  to  make  a  drain  had  left 
a  heap  of  gravel  by  the  roadside.  The  proprietor  said  he  would 
get  it  removed  as  soon  as  possible,  and  paid  a  man  to  cart  it 
awa3'.  The  man  did  not  do  his  work  thoroughly  enough,  and  a 
person  driving  home  Avas  upset  and  injured.  In  an  action  by  this 
person  against  the  proprietor,  it  Avas  urged  that  it  was  the  con- 
tractor who  was  liable.  But  the  proprietor  was  held  liable  on  the 
ground  that  it  did  not  appear  that  the  contractor  had  undertaken  to 
remove  the  gravel,  and  the  proprietor  had  busied  himself  about  it. 
Burgess  v.  Gray,  1  C.  B.  578. 

2.  Where  the  thing  contracted  to  be  done  is  unlawful.  A  company, 
without  the  special  powers  for  that  purpose  which  they  ought  to 
have  had,  employed  a  contractor  to  open  trenches  in  the  streets  of 
Sheffield.  The  plaintiff  walking  down  the  street  fell  over  a  heap  of 
stones  left  there  by  the  contractor,  and  broke   her  arm.     She  sue- 


NEGLIGENCE.  229 


LIABILITY  OF  MASTER  FOR  INJURY  TO    FEL- 
LOW-SERVANT. 


PRIESTLEY  V.   FOWLER. 

[3  Mee.  &  W.  1 ;  2  Thorap.  Ld.  Cas.  Xeg.  919.] 

Fowler  was  a  butcher  and  Priestley  was  his  man.  It 
was  Priestley's  interesting  duty  to  take  meat  around  in 
a  van  to  the  various  customers.  These  seem  to  have 
been  pretty  numerous,  for  one  day  such  a  quantity  of 
shoulders  of  mutton  and  rounds  of  beef  were  put  on 
board  that  the  van  broke  down  and  Priestlej^'s  thigh 


ceeded  in  getting  damages  out  of  the  company,  the  distinction  be- 
ing clearly  drawn  between  a  contractor  being  employed  to  do 
something  lawful  and  to  do  something  unlawful.  Ellis  v.  Slieffleld 
Gas  Consumer  Co.,  2  El.  &  Bl.  7GG. 

3.  Wliere  the  thing  contracted  to  be  done  is  perfectly  lawfulin  itself ^ 
but  injxirions  consequences  must  in  the  natural  course  of  things  arise, 
unless  effectual  means  to  prevent  them  are  adopted.  Sir.  Robbins,  of 
Chicago,  luid  let  to  one  Button,  the  contract  to  build  a  store- 
house on  his  lot,  which  work  required  an  excavation  to  be  made  in 
the  street,  that  if  unguarded  was  liable  to  entrap  some  unwary 
pedestrian.  Button  after  he  had  made  the  excavation  neglected 
to  guard  it,  and  a  pedestrian  fell  in,  as  was  to  be  expected.  Under 
these  circumstances  it  was  held  that  Robbins  was  liable  for  the  in- 
jury.    Robbins  v.  Chicago,  2  Black,  418;  4  Wall,  657. 

4.  Wliere  the  employer  is  bound  by  statute  to  do  a  thing  efficiently. 
A  railroad  company  were  authorized  by  act  of  Parliament  to  make 
an  opcniug  bridge  over  a  navigable  river.  They  employed  a  con- 
tractor, and  that  gentleman  ingeniously  made  them  a  bridge  which 
wouldn't  open.  The  plaintiff's  vessel  was  in  consequence  pre- 
vented from  navigating  the  river,  and  the  company  were  held 
responsible  to  him.  Hole  v.  Sitting  Bourne  R.  Co.,  6  Hurl.  &  N. 
488 ;  Shirley's  Ld.  Cas.  202. 


230  LEADING    CASES    SI3IPLIFIED. 

was  fractured.  The  butcher  boy  uow  brought  an  ac- 
tion against  his  master,  but  it  was  held  that  the  action 
would  not  lie.  "  If  the  master  be  liable  to  the  ser- 
vant in  this  action,"  said  Lord  Abixger,  "  the  princi- 
ple of  that  liability  will  be  found  to  carry  us  to  an 
alarming  extent.  He  who  is  responsible  by  his  gen- 
eral duty,  or  by  the  terms  of  his  contract,  for  all  the 
consequences  of  negligence  in  a  matter  in  which  he  is 
the  principal,  is  responsible  for  the  negligence  of  all 
his  inferior  agents.  If  the  owner  of  the  carriage  is 
therefore  responsible  for  the  sufficiency  of  his  carriage, 
to  his  servant,  he  is  responsible  for  the  negligence 
of  his  coach-maker,  or  his  harness-maker,  or  his 
coachman.  The  footman,  therefore,  who  rides  be- 
hind the  carriage  may  have  an  action  against  his 
master  for  a  defect  in  the  carriage,  owing  to  the 
negligence  of  the  coach-maker,  or  for  a  defect  in 
the  harness,  arising  from  the  negligence  of  the  har- 
ness-maker, or  for  drunkenness,  neglect,  or  want 
of  skill  in  the  coachman ;  nor  is  there  any  reason 
why  the  principle  should  not,  if  applicable  in  this 
class  of  cases,  extend  to  many  others.  The  master, 
for  example,  would  bo  liable  to  the  servant  for  the  negli- 
gence of  the  chambermaid  for  putting  him  into  a  damp 
bed  ;  for  that  of  the  upholsterer,  for  sending  in  a  crazy 
bedstead,  Avhereby  he  was  made  to  fall  down,  while 
asleep,  and  injure  himself;  for  the  negligence  of  the 
cook,  in  not  properly  cleaning  the  copper  vessels  used 
in  the  kitchen  ;  of  the  butcher,  in  supplying  the  family 
with  meat  of  a  quality  injurious  to  the  health  ;  of  the 
builder,  for  a  defect  in  the  foundation  of  the  house, 
whereby  it  fell  and  injured  both  the  master  and  the 
servant  by  the  ruins.     The  inconvenience,  not  to  say 


NEGLIGENCE.  231 

the  absurdity,  of  these  consequences  affords  a  sufficient 
argument  against  the  application  of  tliis  principle  to  the 
present  case." 


FARWELL.  V.  BOSTOX,  ETC.,  R.  CO. 

[4  Mete.  49;  2  Thomp.  Ld.  Cas.  Neg.  924.] 

Farwell  was  an  engineer  on  the  Boston  &  Worces- 
ter Kailroad,  and  one  day  late  in  October,  1837,  was 
running  his  locomotive  (behind  which  were  several 
passenger  cars)  along  the  road  as  usual,  when  all  of 
a  sudden  the  locomotive  leaped  from  the  track,  and 
after  cavorting  round  in  the  ditch  for  some  time,  came 
to  a  standstill,  not,  however,  until  it  had  broken  sev- 
eral of  Farwell's  bones.  The  cause  of  this  deplorable 
accident  was,  as  often  happens,  the  negligence  of  one 
"Whitcomb,  who  had  charge  of  the  switch,  and  who 
had  very  carelessly  left  it  open.  Farwell  now  sued  the 
company  for  the  injury,  and  the  case  came  before  the 
Supreme  Judicial  Court  of  Massachusetts.  "This  is 
an  action  of  new  impression  in  our  courts,"  said  Chief 
Justice  Shaw,  "and  involves  a  principle  of  great  im- 
portance. It  presents  a  case  where  two  persons  are 
in  the  service  and  employment  of  one  company,  whose 
business  it  is  to  construct  and  maintain  a  railroad,  and 
to  employ  their  trains  of  cars  to  carry  persons  and 
merchandise  for  hire.  They  are  appointed  and  em- 
ployed by  the  same  company  to  perform  separate  duties 
and  services,  all  tending  to  the  accomplishment  of  one 


232  LEADING   CASES    SIMPLIFIED. 

and  the  same  })urp()sc  —  that  of  the  safe  and  rapid 
traiisuiission  of  the  trains  ;  and  they  are  paid  for  their 
respective  services  according  to  tlie  nature  of  their  re- 
spective duties,  and  tlie  labor  and  skill  required  for 
their  proper  performance.  The  question  is,  whether, 
for  damages  sustained  by  one  of  the  persons  so  em- 
ployed, by  means  of  the  carelessness  and  negligence  of 
anotlier,  the  party  injured  has  a  remedy  against  the 
common  employer."  This  question  the  court  resolved 
in  the  negative,  and  Farwell  was  thus  unable  to  obtain 
damages  for  his  injury  from  the  company.^ 


1  It  is  not  often  that  a  servant  can  bring  an  action  against  his 
master  in  respect  of  an  injury  sustained  in  the  course  of  tlie  ser- 
vice. He  is  supposed  at  the  time  of  entering  on  the  service  to  have 
contemplated  all  the  ordinary  risks  thereof;  to  have  made  allow- 
ance for  them  in  his  wages,  and  he  is  not  bound  to  risk  his  safety, 
but  may  decline  to  enter  into  the  service  if  he  thinks  there  are  too 
many  dangers.  One  of  these  risks,  which  he  is  taken  to  have 
contemplated,  is  the  risk  of  one  of  his  fellow-servants  engaged  in  a 
common  employment,  negligently  causing  him  an  injury;  and  in 
such  a  case  the  master  could  not  be  successfully  sued.  Take,  for 
instance,  the  case  of  a  railroad  accident  happening  through  the  en- 
gineer's negligence:  every  ordinary  passenger  who  has  been  in- 
jured can  get  compensation  out  of  the  company;  but  the  conductor, 
brakeman,  and  the  fireman,  no  matter  how  innocent  of  negligence, 
cannot ;  they  are  fellow-servants  of  the  engineer,  and  engaged  in  a 
common  employment. 

It  is,  however,  a  master's  duty  to  take  reasonable  precautions  to 
insure  the  safety  of  his  servants.  If  he  has  omitted  to  provide 
competent  fellow-servants,  or  safe  and  efficient  machinery,  or  if  his 
own  personal  negligence,  or  that  of  one  who  may  bo  regarded  as  a 
deputy-master,  or  as  a  servant  of  the  same  master  but  engaged  in  a 
different  employment,  has  conduced  to  the  accident;  in  such  cases 
he  is  not  exempt  from  liability.  Even,  however,  in  cases  where 
the  machinery  provided  by  the  master  was  not  safe  and  efficient, 
the  master  is  not  liable  if  the  servant  was  equally  well  aware  how 
defective  it  was,  and  in  spite  of  that  knowledge  went  on  working 
with  it.    Shirley's  Ld.  Cas.  196. 


NEGLIGENCE.  233 

CONTRIBUTORY  NEGLIGENCE. 


BUTTERFIELD  v.  FORRESTER. 

[11  East,  GO;  2  Thomp.  Ld.  Cas.  Neg.  1104.] 

Mr.  Forrester  was  a  citizen  of  the  town  of  Derby, 
and  at  the  time  to  which  our  story  relates  was  engaged 
in  the  hiudable  enterprise  of  enlarging  and  improving 
his  house.     This  was   all  very  well ;  but  in  carrying 
out  his  repairs  he   was  guilty  of  the  high-handed  and 
unwarrantable  act  of  putting  poles  across  the  king's 
highway.     Just  about  dusk  one  August  evening,  while 
the  things  were  in  this  improper  state,  Mr.  Butterfield 
was  riding  home.     With  reckless  disregard  for  his  own 
and  the  liege's  safety,  he  went  galloping  through  the 
streets    "as  fast   as  his  horse  could   go;"    and   the 
reader  will  scarcely  be  surprised  to  hear  that  he  rode 
plump    up  against  Mr.  Forrester's  obstruction,    and, 
that  a  moment  later,  as  the  poet  says  (though,  if  we 
remember  right,  not  exclusively  in  reference  to  Mr. 
Butterfield),  "  there  lay  the  rider  distorted  and  pale.'* 
Conceiving  with  a  great  deal  of  sense,  that  the  most 
effectual  way  of  restoring  his  health  would  be  by   a 
verdict  and  damages,  he  brought  this  action  ;  but  his 
own  careless  riding  was  held  to  be  as  complete  an  ob- 
stacle to  his  success  as  Mr.  Forrester's  pole  had  been 
to  his  horse.     "A  party,"  said  Lord  Ellenbokough, 
C.  J.,    "  is  not  to    cast  himself  upon  an   obstruction 
which  has  l)cen  made  by  the  fault  of  another,  and  avail 
himself  of  it,  if  he  do  not  himself  use  common  and  or- 


234  LEADING    CASES    SIMPLIFIED. 

diuary  caution  to  be  in  the  right.  *  *  *  Que  per- 
son l)cing  in  fault  will  not  dispense  with  another's 
using  ordinary  care  for  himself." 


DAVIES  V.  MANIS^. 

[10  Mce.  &  W.  545;  2  Thomp.  Ld.  Cas.  Neg.  1105.] 

"  The  plaintiff  having  fettered  the  forefeet  of  an  ass 
belonging  to  him,  turned  it  into  a  public  highway,  and 
at  the  time  in  question,  the  ass  was  grazing  on  the  oflf 
side  of  a  road  about  eight  yards  wide  when  the  de- 
fendant's waijon  with  a  team  of  horses  came  alons;." 
The  wagon  was  going  a  great  deal  too  fast,  and  was 
not  being  properly  looked  after  by  its  driver,  and  the 
consequence  was  that  it  caught  the  poor  beast,  which 
could  not  got  out  of  the  way,  and  hurled  it  into  that 
bourne  whence  returneth  neither  man  nor  donkey. 
The  owner  of  the  donkey  now  brought  an  action 
against  the  owner  of  the  wagon,  and,  in  spite  of  his 
own  stupidity,  was  allowed  to  recover,  on  the  ground 
that  if  the  driver  of  the  wagon  had  been  decently  care- 
ful the  consequences  of  the  plaintiiT's  negligence 
would  have  been  averted.  "Although,"  said  Parke, 
B.,  "  the  ass  may  have  been  wrongfully  there,  still 
the  defendant  was  1)ound  to  go  along  the  road  at  such 
apace  as  would  be  likely  to  prevent  mischief.  Were 
this  not  so,  a  man  might  justify  the  driving  over  goods 
left  on  a  public  highway,  or  even  over  a  man  lying 


NEGLIGENCE.  235 

asleep  there,  or  the  purposely  running  against  a  car- 
ria<ro  ffoin":  on  the  wron<2;  side  of  the  road." 

The  doctrine  of  contributory  negligence  is  based  on 
the  common-sense  maxim,  volenti  non  Jit  injuria^  — 
i.e.,  the  man  who  is  the  author  of  his  own  hurt  has  no 
right  to  complain  of  it ;  his  own  folly  disentitles  him 
to  anybody's  sympathy  or  money.  But  Davies  v. 
Mann  lays  down  a  very  sensible  qualification  to  this 
rule,  viz.  :  If  the  defendant  by  being  ordinarily  careful 
would  have  averted  the  consequences  of  the  plaintiff's 
negligence, — in  other  words,  if  the  regrettable  acci- 
dent would  never  have  happened  if  the  defendant  had 
behaved  as  he  ought  to  have  done,  — then  the  plaintiff 
is  entitled  to  recover  in  spite  of  his  negligence. 


IMPUTED  NEGLIGENCE. 


ben]st:tt  v.  new  jersey  ratlroad. 

[36  N.  J.  (L.)  225;  Thomp.  Ld.  Cas.  Carr.  Pass.  281.] 

Just  where  a  street-car  track  and  a  railroad 
track  crossed  each  other  in  Jersey  City  there  Avas  a 
smash-up  one  day,  a  locomotive  of  the  New  Jersey 
Railroad  running  into  a  street-car  which  was  attempt- 
ing to  cross  over.  It  was  not  denied  that  both  the 
ensfineer  of  the  locomotive  and  the  driver  of  the  horse- 


236  LEADING    CASES    SIMPLIFIED. 

car  were  guilty  of  negligence.  j\Ir.  Bennett,  who  was 
sitting  in  the  latter  vehicle  at  the  time,  and  who  was  a 
good  deal  hurt,  sued  the  railroad  conipan}',  and  the 
jury  gave  him  $5,000  damages.  The  company  ap- 
pealed to  the  Supreme  Court  on  the  ground  that  Mr. 
Bennett  had  been  guilty  of  contributory  negligence. 
*' "Whore  is  the  contributory  negligence?"  the  court 
inquired.  "I  will  showyou,"  said  the  railroad  lawyer  ; 
"  the  driver  of  the  horse-car  was  negligent,  and  as 
Bennett  was  a  passenger  thereon,  he  is  so  '  identified' 
with  the  driver  as  to  be  responsible  for  his  acts.  In 
the  case  of  Tliorogood  v.  Bryan,^  the  English  court 
of  Common  Pleas  so  decided  in  the  year  1849." 
But  the  New  Jersej'"  court  very  properly  refused  to 
follow  the  English  rulino;,  and  the  railroad  was  com- 
polled  to  pay.  "I  have  eutirely  failed  to  conceive," 
said  Beasley,  C.  J.,  "  how  it  is  that  the  passenger  in  a 
public  conveyance  becomes  identified  in  any  legal  sense 
with  the  driver  of  such  conveyance.  Such  identifica- 
tion could  result  only  in  one  way —  that  is,  by  consider- 


1  In  Thorogood  v.  Bryan,  8  C.  B.  114;  (Thomp.  Ld.  Cas.  Carr. 
Pass.  273),  the  action  was  by  the  wife  of  Thorogood,  who  had  been 
killed  under  the  following  circumstances:  He  was  a  passenger  in 
an  omnibus,  in  alighting  from  which  he  was  run  over  by  an  omni- 
bus of  another  line  belonging  to  the  defendant.  The  injury  was 
the  result  of  the  concurrent  negligence  of  both  drivers,  and  it  was 
held  lliut  this  being  so  the  widow  could  recover  nothing.  This  case 
has  been  much  criticised  both  by  later  English  judges  and  text 
writers.  The  American  courts  decline  to  follow  it  —  except  in 
Pennsylvania.  Here  is,  perhaps,  the  place  to  warn  the  student,  so 
far  as  the  law  of  carriers  is  concerned,  not  to  pay  much  heed  to  the 
decisions  of  the  Supreme  Court  of  Pennsylvania,  at  least  during  the 
past  ten  or  fifteen  3'ears.  The  Pennsylvania  Railroad  appears  to 
*'run"  tjiat  tribunal  with  the  same  success  that  it  does  its  own 
trains. 


NEGLIGENCE.  237 

ino"  such  driver  the  servant  of  the  passenger.  *  *  • 
The  i)assenger  has  no  control  over  the  driver  or  agent 
in  charge  of  the  vehicle,  and  it  is  the  right  to  control 
the  ao-ent  which  is  the  foundation  of  the  doctrine  tliat 
the  master  is  to  be  allected  l)y  the  acts  of  his  servant. 
To  hold  that  the  conductor  of  a  street-car  or  of  a  rail- 
road train  is  the  agent  of  the  numerous  passengers 
who  may  chance  to  be  in  it,  would  be  a  pure  fiction." 


CONTRIBVTORY  NEGLIGENCE   OF    CHILDREN. 


LYNCH  V.  NURDIN. 

[1  Q.  B.  29;  2  Tliomp.  Ld.  Cas.  Neg.  1140.] 

Mr.  Nurdin  was  an  egg  merchant,  and  used  to  send 
his  servant  with  a  cart  to  deliver  eggs  to  his  cus- 
tomers. One  day,  when  the  man  was  out  with  the 
cart  as  usual,  he  imprudently  left  it  for  half  an  hour 
or  so  standing  by  itself  in  the  street,  drawn  up  by  the 
side  of  the  pavement.  While  he  was  away,  some  little 
children  began  playing  about  the  cart,  climbing  into  it 
and  having  all  kinds  of  games.  Amongst  them  was  a 
little  boy,  who  maybe  said  to  be  the  hero  of  this  thrill- 
ing narrative,  aged  six  years.  He  was  in  the  act  of 
climbing  the  step  with  a  view  to  securing  a  box-seat, 
when  another  mischievous  little  beggar  pnlled  at  the 
horse's  bridle.     The  old  horse,  obeying    its    natural 


238  LEADING    CASES    SIMPLIFIED. 

master,  iiiun,  moved  on,  and  tlie  little  Lynch  was 
thrown  to  the  ground,  and  the  wheel  went  over  him. 
The  child  now  brouirht  an  action  for  damages  against 
the  egg  merchant,  and  ])ecause  he  was  a  child  ho  was 
successful.  He  had  done  wrong ;  he  had  no  right  to 
get  on  the  cart,  and  if  he  had  abstained  from  doing  so 
he  would  not  have  been  injured.  But  the  care  which 
would  have  been  expected  of  a  man  was  not  to  be 
asked  of  so  young  a  child.  ♦*  The  question  remains," 
said  Chief  Justice  Denman,  *'  can  the  plaintiff  consist- 
ently Avith  the  authorities  maintain  his  action,  having 
been  at  least  equally  in  fault?  The  answer  is  that 
supposing  that  foct  ascertained  by  the  jury,  but  to 
this  extent,  that  he  merely  indulged  the  natural  in- 
stinct of  a  child  in  amusing  himself  with  the  empty 
cart  and  deserted  horse,  then  we  think  that  the  de- 
fendant cannot  be  permitted  to  avail  himself  of  that 
fact.  The  most  blamable  carelessness  of  his  servant 
having  tempted  the  child,  he  ought  not  to  reproach 
the  child  with  yielding  to  that  temptation.  He  has 
been  the  real  and  only  cause  of  the  mischief.  He  has 
been  deficient  in  ordinary  care  ;  the  child  acting  with- 
out prudence  or  thought  has,  however,  shown  these 
qualities  in  as  great  a  degree  as  he  could  be  expected 
to  possess  them,  His  misconduct  bears  no  proportion 
to  that  of  the  defendant  which  produced  it." 


NEGLIGENCE.  239 

CONTRIBUTORY  NEGLIGENCE  OF  PARENT. 


HARTFIEI.I>   V.  ROPER. 

[21  Wend.  615;  2  Thomp.  Ld.  Cas.  Neg.  1121.] 

One  day  in  the  winter  of  1836,  a  child  only  two 
years  old  was  playing  in  the  beaten  track  of  a  public 
hiirhwav,  alone  and  unattended.  A  sleigh,  without 
bells,  driven  by  Mr.  Roper,  came  along  over  this  road, 
at  a  moderate  speed,  and  the  driver  succeeded  in  run- 
ning over  the  child  before  he  discovered  his  presence. 
For  the  injuries  thus  sustained,  the  child  brought  an 
action  against  the  persons  in  the  sleigh.  He  did  not, 
however,  succeed.  Though  a  child  of  such  tender 
years  was  incapable  of  using  that  ordinary  care  which 
is  required  oi  an  adult,  and  though  his  contributory 
negligence  could  not  affect  him,  it  was  nevertheless 
held  that  the  want  of  such  care  on  the  part  of  his 
parents  was  a  sufficient  answer  to  the  action.  For  a 
parent  or  guardian  to  allow  a  child  only  two  years  of 
age  to  wander  and  play  unattended  on  a  public  road 
was  clearly  negligence,  and  this  negligence  furnished 
a  complete  defence  to  an  action  by  the  child  for  the 
injury  sustained.^ 


1  "  The  rule  which  imputes  the  negligence  of  parents  to  chil- 
dren," says  Judge  Thompson,  in  his  work  on  "Negligence," 
"has  received  the  support  of  subsequent  decisions  in  New  York, 
and  of  the  courts  of  last  resort  in  Massachusetts,  Maine,  Mary- 
land, Indiana,  Illinois,  California  and  Nebraska.  On  the  contrary 
it  is  denied  in  Pennsylvania,  Vermont,  Connecticut,  Ohio,  Virginia, 
Missouri  and  Alabama  that  the  failure  of  the  parent  to  exercise 
proper  care  over  the  child,  such  that  it  shall  be  restrained  within 
safe  limits,  can  affect  the  child's  right  of  action  for  injuries  sus- 
tained through  the  negligence  of  third  persons." 


240  LEADING    CASES    SIMPLIFIED. 

PROXIMATE  AND  REMOTE  CAUSE. 


SCOTT  V.  SHEPHERD. 

[2  W.  Black.  892;  1  Smith's  Ld.  Cas.  549.] 

Probably  no  case  except  Coggs  v.  Bernard  is  l)etter 
known  to  the  lawyer  than  the  celebrated  "  Squib 
Case."  It  cannot  be  said,  however,  that  its  importance 
is  equal  to  its  popularity.  In  days  gone  by  it  served 
to  illustrate  the  distinction  between  the  action  of  tres- 
pass and  the  action  on  the  case  ;  but  it  is  now  only 
worth  remembering  as  an  authority  on  the  qnestion  of 
consequential  damage.  The  facts  are  well  related  by 
the  Apprentice  of  Lincoln's  Inn  :  — ^ 

"  Facts  o'  case  first.    At  Milbourne  Port 
Was  fair  daj',  October  the  twcuty  and  eight, 
And  folk  in  the  market  like  fowls  in  a  crate ; 
Shepherd,  one  of  j'oiir  town-fool  sort. 
(From  Solomon's  time  they  call  it  sport. 
Eight  to  help  holiday,  just  make  fun  louder), 
Lights  me  a  squib  up  of  paper  and  powder 
(Find  if  you  can  the  law-Latin  for't). 
And  chucks  it,  to  give  their  trading  a  rouse. 
Full  i'  the  midst  o'  the  market-house. 
It  happened  to  fall  on  a  stall  where  Yates 
Sold  ginger-bread  and  gilded  cates. 
(Small  damage  if  they  should  burn  or  fly  all)  ; 
To  save  himself  and  said  ginger-bread  loss. 
One  Willis  doth  toss  the  thing  across 
To  stall  of  one  Ryal,  who  straight  on  espial. 


•  Leading  Cases  Done  into  English.     By  An  Apprentice  of  Lin- 
coln's Inn.     London,  1876. 


NEGLIGENCE.  241 

Of  danger  to  his  wares,  of  self-same  worth, 
Casts  it  in  market-house  farther  forth, 
And  by  two  mesne  tossings  thus  it  got 
To  burst  i'  the  face  of  plaintiff  Scott. 
And  now  'gainst  Shepherd  for  loss  of  eye, 
Question  is,  whether  trespass  shall  lie." 

Shepherd  objected  that  he  was  not  responsible  for 
Tfhat  had  happened  when  the  squib  had  passed 
through  so  many  hands  ;  but  though  he  persuaded 
the  learned  Mr.  .Justice  Blackstone  to  agree  with  him, 
the  majority  of  the  court  decided  that  he  must  be 
presumed  to  have  contemplated  all  the  consequences  of 
his  ^orongful  act  and  was  answerable  for  them. 


feist:  v.  TOLEDO,  ETC.,  R.  CO. 

[59  111.  349;   1  Thomp.  Ld.  Cas.  Neg.  136.] 

A  warehouse  and  lumber  yard  were  near  the  track 
of  the  Toledo  and  Peoria  Railroad  Company,  at  Fair- 
field, 111.,  a  very  good  situation  for  some  reasons,  and 
a  bad  one  for  others.  One  day  in  October,  18(37,  a 
locomotive  came  along,  belching  out  great  clouds  of 
thick  smoke  and  live  cinders.  There  had  been  no  rain 
in  the  neighborhood  for  some  weeks,  and  so,  w^heu 
some  of  the  coals  fell  on  the  lumber  there  was  a  bis:- 
blaze,  which  was  not  extinguished  until  it  had  de- 
voured not  only  the  warehouse  and  lumber  yard,  but 
likewMse    Mr.   Fent's   house,   which  was  located  two 

hundred  feet  from  the  warehouse,  from  which  the  fire.- 
i< 


242  LEADING   CASES    SIMPLIFIED. 

spread.  The  railroad  company  could  not  deny  their 
negligence,  and  consequently  their  liability,  for  burn- 
ing the  warehouse  and  luml)er  yard,  but  they  firmly 
refused  to  pay  any  damage  for  Mr.  Fent's  house. 
When  he  brought  an  action  against  them,  they  argued 
that,  as  the  house  was  set  on  fire,  not  by  sparks  from 
the  locomotive,  but  from  sparks  from  the  burning 
warehouse,  they  were  not  liable,  because  they  were 
only  the  remote  and  not  the  proximate  cause  of  the 
loss.  And  what,  they  asked,  Avill  become  of  us  poor 
railroads  if,  by  a  spark  from  a  locomotive,  a  house  near 
the  track  catches  on  fire,  which  spreads  and  burns 
down  a  whole  town,  and  we  are  made  to  pay  for 
the  whole  damage.  But,  notwithstanding  this  touch- 
ing appeal,  the  court  decided  against  the  company. 
*'  If  loss  has  been  caused  by  the  act,"  said  Lawkence, 
C.  J.,  "  and  it  was,  under  the  circumstances,  a  natural 
consequence  which  any  reasonal)le  person  could  have 
anticipated,  then  the  act  is  a  proximate  cause  whether 
the  house  burned  was  the  first  or  the  tenth  —  the  latter 
being  so  situated  that  its  destruction  is  a  consequence 
reasonaldy  to  be  anticipated  from  setting  the  first  on 
fire."  As  to  the  second  point,  the  court  was  unable 
to  see  the  force  of  an  argument  which  proceeded  upon 
the  assumption  that  it  was  better  to  distribute  a  great 
loss  among  a  hundred  innocent  victims  than  to  visit  it 
all  on  the  wrong-doer. 


MISCELLANEOUS   TORTS.  243 


XY.  —  Miscellaneous   Torts.^ 


mrisANCES. 


ST.  HELEN'S   SMELTES^G  CO.  v.  TEPPEJ^G. 

[11  H.  L.  Cas.  G42;  Big.  Ld.  Cas.  Torts,  454.] 

Mr.  Tipping,  of  Lancashire,  manifested  his  objec- 
tions to  smoke  in  a  very  practical  Avay.  Having  pur- 
chased a  house  and  grounds  situated  within  a  short 
distance  of  the  works  of  a  copper  smelting  company, 
he  found  very  soon  that  to  live  in  that  region  was 
simply  out  of  the  question.  From  the  tall  chimneya 
of  the  works  smoke  and  noxious  vapors  issued  night 
and  day  ;  it  injured  his  trees  and  shrubbery  ;  made  his 
cattle  sick,  and  rendered  his  own  existence  intolerable. 
Mr.  Tipping  therefore  resorted  to  an  action  for 
damages.  The  com[)any  proved  that  the  whole  neigh- 
borhood was  studded  with  manufactories  and  tall 
chimneys  ;  that  there  were  some  alkali  works  close  to 
their  own,  whose  smoke  was  quite  as  injurious  as  theh-s, 
and  that  the  smoke  of  both  sometimes  united,  making 
it  impossible  to  say  to  which  of  the  two  any  particular 
injury  was  attributable.     They  also  relied  on  the  fact 


A  tort  is  an  injury  which  involves  no  breach  of  contract. 


244  LEADING   CASES   SOIPLIFIED. 

that  their  works  har]  existed  before  the  defendant 
bought  his  property.  Nevertheless,  Mr.  Tipping  re- 
covered £361  damages,  and  although  the  company 
carried  the  case  all  the  way  to  the  House  of  Lords,  all 
the  judges  thouglit  him  entitled  to  the  verdict. 

"In  matters  of  this  description,"  said  Lord  Chancellor 
Westbury,  "  it  appears  to  me  that  it  is  a  very  desirable 
thing  to  mark  the  difference  ])ctwecn  an  action  brought 
for  a  nuisance  upon  the  ground  that  the  alleged  nui- 
sance i)roduces  material  injury  to  the  property,  and  an 
action  brought  for  a  nuisance  on  the  ground  that  the 
thing  alleged  to  be  a  nuisance  is  productive  of  sensible 
personal  discomfort.  With  regard  to  the  latter, 
namel}^  the  personal  inconvenience  and  interference 
with  one's  enjoyment,  one's  quiet,  one's  personal 
freedom,  anything  that  discomposes  or  injuriously 
affects  the  senses  or  the  nerves,  whether  that  may  or 
may  not  be  denominated  a  nuisance,  must  undoubtedly 
depend  greatly  on  the  circumstances  of  the  place 
where  the  thing  complained  of  actually  occurs.  If  a 
man  lives  in  a  town,  it  is  necessary  that  he  should  sub- 
ject himself  to  the  consequences  of  those  operations 
of  trade  which  may  be  carried  on  in  his  immediate 
locality,  which  are  actually  necessary  for  trade  and 
commerce,  and  also  for  the  enjoyment  of  property, 
and  for  the  benefit  of  the  inhabitants  of  the  town  and 
of  the  public  at  large.  If  a  man  lives  in  a  street 
where  there  are  numerous  shops,  and  a  shop  is  opened 
next  door  to  him,  which  is  carried  on  in  a  fair  and 
reasonable  way,  he  has  no  ground  for  complaint,  be- 
cause to  himself  individually  there  may  arise  nmch 
discomfort  from  the  trade  carried  on  in  that  shop. 
But  when  an  occupation  is  carried  on  by  one  person  in 


MISCELLANEOUS   TORTS.  245 

the  neighborhood  of  another,  and  the  result  of  that 
trade,  or  occupation,  or  business,  is  a  material  injury  to 
property,  then  there  nnquestionably  arises  a  very  dif- 
ferent consideration.  I  think,  my  lords,  that  in  a  case 
of  that  description,  the  submission  which  is  required 
from  persons  living  in  society  to  that  amount  of  dis- 
comfort which  may  be  necessary  for  the  legitimate  and 
free  exercise  of  the  trade  of  their  neighbors  would  not 
apply  to  the  circumstances,  the  immediate  result  of 
which  is  sensible  injury  to  the  value  of  the  property." 
And  the  judges  held,  also,  that  the  fact  that  the  local- 
ity where  the  oifensive  trade  was  carried  on  was  one 
generally  employed  for  the  purpose  of  that  and  similar 
trades,  would  not  exempt  the  company  from  lial)ility 
to  an  action  for  damages  in  respect  of  injury  created 
by  it  to  property  in  the  neighborhood. 


FALSE  REPRESENTATIONS. 


PASLEY  V.   FREEMAN. 

[3  Term  Rep.  51 ;  2  Smith's  Ld.  Cas.  157.] 

Pasley  was  a  person  who  dealt  in  that  curious  ex- 
port of  Mexico,  cochineal,  and  wanted  a  purchaser  for 
a  quantity  he  had  on  hand.  Happening  to  make  known 
his  want  to  Freeman,  that  worthy  instantly  said  he 


246  LEADING    CASES    SIMPLIFIED. 

knew  somebody  wlio  would  buy  the  cochineal  —  a  Mr. 
Falch.  "  Is  he  a  respectable  and  substantial  person  ?  " 
asked  Pasloy.  "  Certainly  he  is,"  answered  Freeman, 
well  knowing  that  ho  was  nothing  of  the  sort.  On  tho 
faith  of  this  representation,  Pasley  let  Falch  have  six- 
teen bags  of  cochineal,  of  the  value  of  nearly  £3,000, 
on  credit.  It  then  turned  out  that  Falch  was  a  man  of 
straw,  and  as  Pasloy  had  not  the  remotest  prospect  of 
getting  the  £3,000  from  him,  he  sued  Freeman  for 
*'  tellinoi-  a  lie,"  and  G:ot  his  money  that  way. 

Tho  fourth  section  of  the  Statute  of  Frauds,  enacts, 
amongst  other  things,  that  a  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  one  of  your  friends, 
must  be  in  writing,  or  it  shall  not  bind  you.  Why, 
then,  Avas  Freeman  held  liable?  The  answer  is  that, 
whereas  the  section  refers  exclusiyely  to  contracts.  Pas- 
ley  sued  Freeman  in  tort;  and  the  principle  affirmed 
in  the  case  is,  that  "  wherever  deceit  or  falsehood  is 
practiced  to  the  detriment  of  another  the  law  will  give 
redress."  And  it  is  no  defence  to  an  action  of  this 
kind  that  the  defendant  had  no  interest  in  and  was  to 
gain  nothing  from  tolling  the  lie. 

The  Apprentice  of  Lincoln's  Inn  thus  renders  this 
memorable  decision  :  — 


It  was  Pasley  came  witli  his  folaw 
to  London  town  with  wares  to  sell, 

sixteen  bags  of  the  fine  cochineal, 
for  buyers  who  should  like  them  well. 

Stoo<l  lip  a  l)uyor  and  spoke  so  fair; 
Joliii  (Miristophcr  Falch  lie  ha<l  to  name; 
"Riglit  well  me  liketh  the  cochineal  line, 
and  I  will  freely  buy  the  same." 


MISCELLANEOUS   TORTS* 

«*  If  ye  be  fain  to  buy  our  wares, 

we  must  wot  one  thins  or  ere  we  sell ; 
ye  shall  do  us  to  wit  if  ye  be  of  worth, 
a  man  to  trust  and  credit  well. 

"  Tor  but  and  the  silver  and  gold  were  paid, 
this  day  were  a  day  to  rue  full  sore : 
two  thousand  pound  is  not  the  worth, 
nor  if  ye  tell  six  hundred  more." 

Joseph  Freeman  stood  up  and  spake : 
"  I  rede  you  let  the  wares  be  sold, 
John  Christopher  is  a  man  of  trust 
for  the  white  silver  and  eke  red  gold." 

They  have  given  their  wares  to  John  Christopher, 

and  set  him  a  day  to  pay  in  hand  ; 
John  Christopher's  fled  o'er  the  wan  water 

and  left  no  goods  within  the  land. 

Pasley  is  woxen  as  a  man  wood, 

to  sit  still  him  seemed  nothing  meet; 

said,  We'll  up  and  sue  this  false  Freeman, 
to  do  us  right  for  his  deceit. 

There  was  Grose  the  one  justice, 

said  this  was  but  a  lewed  thing, 
for  where  ye  find  no  word  of  promise, 

no  action  lieth  for  bare  lesing. 

Buller,  was  the  other  justice, 

said.  Here  is  a  damage  and  deceit ; 

where  by  word  of  man  be  comen  these  twain, 
the  third  is,  to  requite  his  cheat. 

Ashhurst  was  the  third  justice, 

said,  Though  he  gain  not  by  the  lie, 

his  malice  is  yet  more  curst  of  kind 
than  if  he  had  hope  to  win  thereby. 

Lord  Kenyon  was  the  chief  justice, 

said,  Full  little  is  left  to  tell; 
but  the  fraud  was  plain  and  eke  the  loss, 

and  I  hold  this  action  lieth  well. 


247 


248  LEADING    CASES   SIMPLIFIED. 

So  Paslcy  won  that  cause  as  then ; 

but  merchants  had  thereof  affright, 
and  have  Ictten  ordain  in  Parliament, 

such  words  shall  have  no  harm  ne  might 
to  hold  one  bound  for  his  fellow's  trust, 

but  if  they  be  written  in  black  and  white.* 


LANGRIDGE  v.  LEVY. 

[2  Mee.  &  W.  519;  4  Id.  337.] 


Mr.  Laiigridge,  senior,  Avalking  one  clay  down  the 
streets  of  Bristol,  noticed  a  gun  in  a  shop  window  with 
the  following  seductive  advertisement  tied  round  its 
muzzle  :  — 

*'  Warranted,  this  elegant  twist  gun  by  Nock,  with 
case  complete,  made  for  his  late  Majesty  George  IV. ; 
cost  60  guineas  ;  can  be  had  for  25." 

Ho  entered  the  shop,  which  was  the  defendant's, 
and  told  him  he  wanted  a  nice,  quiet,  steady-going  gun 
for  the  use  of  himself  and  his  son.  Finally,  he  bought 
the  eleo-ant  twist-gun,  as  warranted.     Now,  we  regret 


1  Pasley  v.  Freeman  was  substantially  if  not  in  form  a  violation 
of  the  Statute  of  Frauds.  Viewing  it  in  this  light,  Parliament 
passed  an  act  in  the  ninth  year  of  George  the  Fourth's  reign,  which 
provided  that  no  one  who  luid  eulogized  another's  "  character,  con- 
duct, credit,  ability,"  etc.,  in  order  to  induce  people  to  trust  him, 
should  be  liable  to  an  action  for  false  representation,  unless  his 
eulogy  were  in  writing  and  signed  by  him.  This  is  generally  known 
as  Lord  Tenderden's  act,  so  named  after  its  author,  and  it  has 
been  copied  into  the  statutes  of  at  least  ten  States  of  the  Union. 
See  Browne  on  Stat.  Fr.,  sect.  181. 


MISCELLANEOUS   TORTS.  249 

to  say,  this  warranty  was  false  and  fraudulent,  to  the 
defendant's  knowledge,  and,  shortly  after  the  purchase, 
one  of  the  young  Langridges  was  using  the  gun  in  a 
perfectly  fair  and  sportsmanlike  manner  when  it  burst 
and  blew  off  his  left  hand. 

It  was  this  victim  of  Levy's  dishonesty  who  now 
brought  an  action  against  him,  and  the  chief  point  re- 
lied on  by  the  defendant's  counsel  was  that,  if  any 
one  had  a  right  to  bring  an  action,  it  was  the  father, 
to  whom  the  gun  had  been  sold ;  as  for  the  son,  they 
said,  there  was  no  privity  of  contract  between  him  and 
the  gunsmith.  This  defence,  however,  did  not  succeed; 
and  the  youthful  Langridge  got  as  much  consolation 
as  money  could  give  him  for  the  loss  of  his  hand. 

The  reason  of  this  result  was  that  Levy  had  been 
guilty  of  a  tort  in  making  a  f\ilse  representation.  If 
he  had  made  no  false  representation  he  would  have 
only  been  liable  to  the  father  for  the  breach  of  con- 
tract. As  it  was,  he  was  held  liable  to  the  son,  who 
confided  in  the  representation,  and  who,  he  knew,  was 
going  to  use  it.  Said  Baron  Parke,  who  delivered  an 
exhaustive  judgment  in  the  Court  of  Exchequer:  "It 
the  instrument  in  question  which  is  not  of  itself  dan- 
gerous, but  which  requires  an  act  to  be  done  —  that  is, 
to  be  loaded  —  in  order  to  make  it  so,  had  been  sim- 
ply delivered  by  the  defendant,  without  any  contract 
or  representation  on  his  part  to  the  plaintiff,  no  action 
would  have  been  maintainable  for  any  subsequent  dam- 
age which  the  plaintiff  might  have  sustained  by  the 
use  of  it.  But  if  it  had  been  delivered  by  the  defend- 
ant to  the  plaintiff,  for  the  purpose  of  being  so  used  by 
him,  with  an  accompanying  representation  to  hun  that 
he  might  safely  so  use  it,  and  that  representation  had 


250  LEADING   CASES    SIMPLIFIED. 

been  faJse  to  the  defendant" s  knowledge,  and  the  i)lain- 
tifFh;iil  acted  upon  tlio  faith  of  its  being  trno,  and  had 
received  damage  thereby,  then  there  is  no  question 
but  that  an  action  would  have  lain,  upon  the  principle 
of  a  numerous  class  of  cases,  of  which  the  leading  one 
is  that  of  Pasley  v.  Freeman,  which  principle  is  that 
a  mere  naked  falsehood  is  not  enough  to  give  a  right 
of  action  ;  but  if  it  be  a  falsehood  told  with  an  inten- 
tion that  it  should  be  acted  upon  by  the  party  injured, 
and  that  act  must  produce  damage  to  him  ;  if,  instead 
of  being  delivered  to  the  plaintiff  immediately,  the  in- 
strument had  been  placed  in  the  hands  of  a  third  per- 
son,/b/*  the  purpose  of  being  delivered  to  and  then  used 
by  the  plaintiff,  the  like  false  representation  being 
knowingly  made  to  the  intermediate  person,  to  be 
communicated  to  the  i)laintifr,  and  the  plaintiff  had 
acted  upon  it,  there  can  be  no  doubt  but  that  tlic  prin- 
ciple would  eijually  apply, and  the  plaintiff  would  have 
had  his  remedy  for  the  deceit ;  nor  could  it  make  any 
difference  that  the  third  person  also  was  intended 
by  the  defendant  to  be  deceived  ;  nor  does  there  seem 
to  bo  any  sul^stantial  distinction,  if  the  instrument  be 
delivered  in  order  to  be  so  used  by  the  plaintiff, 
though  it  does  not  appear  that  the  defendant  intended 
the  false  representation  itself  to  be  communicated  to 
him.  There  is  a  false  representation  made  by  the  de- 
fendant, with  a  view  that  the  plaintiff  should  use  the 
instrument  in  a  dangerous  way,  and  unless  the  repre- 
sentation had  been  made,  the  dangerous  act  would 
never  have  been  done." 


MISCELLANEOUS    TORTS.  251 


RIGHTS  OF  FINDERS  — POSSESSION— PRE- 
SUMPTION. 


ARMORY    V.   DELAMIRIE. 

[1  Stra.  504;  1  Smith's  Ld.  Cas,  471.] 

A  youthful  chimney-sweep  was  fortunate  enough  to 
find  a  very  valuable  jewel.  You  or  I,  had  we  found 
such  a  treasure,  miofht  have  advertised  it  in  the  news- 
papers.  Not  so  our  young  friend.  By  his  lights  find- 
ing was  keeping,  and  he  took  it  to  a  jeweller's  to  as- 
certain its  value.  The  jeweller,  taking  advantage  of 
the  boy's  simplicity,  told  him  it  was  a  rubbishy  thing, 
and  oflered  him  three  half-pence  for  it,  —  a  munificent 
ofier  which  the  lad  declined  without  thanks,  and  de- 
manded his  prize  back. 

"For  all  his  words  they  gave  him  for  the  nones 
The  socket  empty  and  withouten  stones, 
And  laugh  upon  him  and  gan  call  him  thief : 
Therefore  full  wisely  telleth  he  his  grief 
To  men  of  law,  which  answered  him  anon." 

And  what  the  men  of  law  answered  him  anon  was  to 
this  efi'ect :  "You  have  fairly  found  this  jewel,  and 
nobody  except  the  real  owner  has  a  better  title  to  it 
than  yourself;  till  he  shall  appear,  you  may  keep  it 
against  all  the  world,  and  maintain  trover  for  it."  ^ 


^  The  finder  of  a  chattel  stands  in  the  shoes  of  the  real  owner 
until  that  pei'son  turns  up.  Therefore,  if  Smith  should  find  a  watch 
on  Monday,  and  on  Tuesday  lose  it,  and  Jones  find  it  this  time, 
Smith  could  recover  it  from  Jones,  if  the  original  owner  was  still 


252  LEADING   CASES    SIMPLIFIED. 

Having  settled  this  point,  the  judges  now  turned  to 
the  vahie  of  the  jewel.  The  jeweller  had  refused  to  pro- 
duce the  stone,  and  so  several  of  the  trade  were  exam- 
ined as  to  the  value  of  a  jewel  of  the  finest  water  that 
would  iit  the  empty  socket,  and  it  was  held  that  every- 
thing would  be  presumed  against  the  jeweller,  and 
that  the  chimney-sweep  should  have  the  value  of  the 
very  best  jewel  of  the  size  taken,  on  the  principle  of 
the  maxim  omnia  proesumuntur  spoliatorem  —  every 
presumption  is  made  to  the  disadvantage  of  the  wrong- 
doer. 


'' INJURY"   WITHOUT  DAMAGE, 


ASHIBY  V.  WHITE. 

[Ld.  Raym.  938;   1  Smith's  Ld.  Cas.  342.] 

Ashby  brought  an  action  against  the  officers  of  an 
election  for  refusing  to  receive  his  vote.  The  candi- 
dates for  whom  he  intended  to  vote  were  elected  ;  but 
in  spite  of  this,    and   although   he   had  sustained   no 


unknown.  But  the  chief  point  on  which  the  well-known  case  of 
Armory  v.  Delamirie  is  an  authority,  is  as  to  what  is  sufficient  to  en- 
able a  person  to  maintain  an  action  of  trover.  It  is  not  merely  the 
person  in  whom  resides  the  right  ot  property  who  can  maintain  such 
an  action.  The  chimney-sweep  had  not  that  right.  It  was  all 
along  in  the  person  who  had  lost  the  jewel.  All  the  chimney- 
sweep had  was  the  right  of  possession,  but  it  was  considered  that 


MISCELLANEOUS   TORTS.  253 

actual  damage,  it  was  held  finally  that  such  an  action 
could  be  maintained.  Chief  Justice  Holt  in  this  case 
covered  himself  with  glory  as  with  a  cloak.  lie  was 
unanimously  overruled  in  his  own  court.  "My 
brothers,"  said  he,  "differ  from  me  in  opinion,  and 
they  all  differ  from  one  another  in  the  reasons  of  their 
opinion,  but  notwithstanding  their  opinion,  I  think  the 
plaintiff  ought  to  recover.  *  *  *  j  ^;^\\\  (\q  these 
two  things.  First,  I  will  maintain  that  the  plaintiff  has 
a  right  and  privilege  to  give  his  vote.  Secondly,  in 
consequence  thereof,  that  if  he  was  hindered  in  the 
enjoyment  or  exercise  of  that  right,  the  law  gives  him 
an  action  against  the  disturber  and  that  this  is  the 
proper  action  given  by  the  law."  The  Chief  Jnstice 
maintained  these  two  propositions  so  well,  that  when 
the  case  went  to  the  House  of  Lords,  the  majority 
opinion  in  his  own  court  was  overruled,  and  Ashby 
was  triumphant. 


DAMAGE   WITHOUT  '' IXJUnr." 


CHASEMORE  v.   RICHARDS. 

[7  H.  L.  Cas.  349.] 

A  town   cannot  easily  have  too  good   a   supplv  of 
water,  and  no  doubt  the  Board  of  Health  of  the  town 


that  was  quite  a  sufficient  foundation  for  an  action  of  trover  as 
against  a  mere  ■wrong-doer.  On  tlie  same  principle  (viz. :  that 
mere  possession  is  sufficient  as  against  a  wrong-doer)  rests  a  well- 


254  LEADING   CASES    SIMPLIFIED. 

of  Croydon  were  ini1)lic  benefactors  when  in  the  year 
1851  thoy  sank  a  substantial  well  and  supplied  the 
good  pi'oplo  of  Croydon  with  pure  water  at  the  rate  of 
six  hundred  thousand  gallons  a  day.  But  the  public 
gain  was  Mr.  Chasemore's  loss.  That  gentleman  was 
the  occupier  of  a  mill  situated  on  the  river  Wandle 
about  a  mile  from  Croydon,  and  had  —  he  and  his 
predecessors  —  used  the  river  for  the  last  seventy 
years  for  turning  his  wheels.  It  may  well  be  imagined, 
therefore,  that  he  was  extremely  disgusted  to  find  that 
the  effect  of  what  the  Board  of  Health  had  done  was 
to  prevent  an  enormous  quantity  of  water  from 
ever  reaching  the  Wandle  or  his  mill.  The  miller, 
they  say,  wots  not  of  all  the  water  that  goes  by  his 
mill.  Very  likely.  But  Chasemore  wotted  of  a  good 
deal  of  water  that  did  not  go  by  his  mill,  and  went  to 
law.  Unfortunately,  however,  he  was  not  successful. 
The  judges  told  him  that,  though  he  was  very  much  to 
be  sympathized  with,  he  had  no  legal  remedy.  There 
was  damage  {damnum)  but  not  injury  {injuria). 

This  case  and  AsJihy  v.  ^V]lite  illustrate  the  distinc- 
tion between  what  the  lawj^ers  call  injuria  sine  damno 
and  datnnutn  sine  ?*?yw7'/a,- ^.e.,  injury  where  there  is 
no  damage,  and  damage  where  there  is  no  injury.  If 
a  man  can  show  the  former  he  is  all  right  —  he  may 
rely  on  getting  some  recompense  at  the  hand  of  the 
law;  but  if  he  can  only  show  the  latter,  his  case  is 
hopeless.  Wherever  a  person  has  sustained  what 
the  law  calls  an  "  injury,"  there  he  may  bring  an  ac- 


known  rule  in  actions  of  ejectment,  namely,  that  tlie  plaintiff  must 
recover  by  the  strcn}:^th  of  his  own  title,  and  not  by  the  weakness 
of  his  opponent's.  Possession,  as  to  the  popular  adage  has  it,  is 
nine-tenths  of  the  law. 


MISCELLANEOUS   TORTS.  255 

tioii  without  being  under  the  necessity  of  proving 
special  damage,  because  the  injury  itself  is  taken  to 
imply  damage.  A  l)anker  once  dishonored  the  cheque 
of  a  customer  who  really  had  plenty  of  money  in  the 
bank,  and  the  customer  thereupon  brought  an  action 
against  him.  It  was  held  that  the  action  was  main- 
tainable, although  the  plaintiif  had  not  sustained  any 
loss  whatever  by  the  l)anker's  wrongful  act.  There 
Avas  no  damniwi,  but  there  was  injuria,  and  that  was 
quite  sufBeient.'  Such  was  Mr.  Ashby's  case ;  he 
could  show  no  "damage,"  but  he  had  sustained  an 
"  injur V  "  and  hence  his  action  was  allowed. 

On  the  other  hand  it  is  not  everything  that  the  law 
brands  as  an  "  injury."  The  most  terrible  wrongs 
may  be  inflicted  by  one  man  on  another  without  re- 
dress ])eing  obtainable.  If  you  are  driving  a  flourish- 
ino'  trade  as  a  schoolmaster,  and  I  come  and  set  up  a 
school  just  opposite  to  yours,  and  the  boys  desert  you 
and  flock  to  me,  there  is  no  "injuria"  here,  even 
thouo'h  I  may  have  turned  schoolmaster  for  the  express 
purpose  of  ruining  you.  It  is  damnum  sine  injuria, 
and  you  have  no  right  of  action  against  me.  Mr. 
Chasemore's  complaint  was  one  of  this  kind  ;  he  had 
sufl'ercd  damage  enough,  a  good  deal  more  than  Mr. 
Ashby  had,  —  but  there  was  no  legal  "injury"  to 
him,  in  what  the  Board  of  Health  had  done. 


1  Marzetti  v.  Williams,  1  Barn.  &  AdoHlS. 


256  LEADING    CASES    SIMPLIFIED. 


TEESPASS. 


THE  SIX  CARPENTERS'   CASE. 

[8  Coke,  UG;  1  Smith's  Ld.  Cas.  217.] 

It  wa8  on  a  warm  September  afternoon  in  the  early 
days  of  James  the  First,  that  six  thirsty  carpenters  en- 
tered  a  London  tavern,  called  the  waiter,  one  John 
Ridding,  and  "  did  there  buy  and  drink  a  quart  of 
wine,  and  there  paid  for  the  same. ' '     Mark  that,  gentle 
reader,  thoy  2J(^'i<^  ^or  it.     But  a  quart  of  wine  does  not 
<ro  far  with  six  lusty  workingmen,  and  the  reader  will 
scarcely  bo  surprised  to  hear  that,  like  Oliver  Twist, 
they  asked  for  more.     The  waiter  accordingly  brought 
them  "  another  quart  of  wine  and   a  pennyworth  of 
bread,  amounting  to  8d."     Whether  the  worthy  pub- 
lican acted  on  the  principle  that  when  men  have  well 
drunk  they  will  be  satisfied  with  any  poison,  or  what- 
ever the  reason  may  have  been,  when  the  banquet  was 
over  and  the  reckoning  came,  our  friends  stoutly  re- 
fused to  pay.     For  this  indignity  the  landlord  brought 
an  action  of  trespass  against  the  whole  six,  and    the 
question   now  was,  whether   this  non-payment  made 
their  original  entry  into  the  tavern  tortious  ;  in  other 
words,    whether    it  made  them  freftj^assers   ah   initio. 
This  question  was  decided  in  the  negative,  the  judges 
holding  that  mere  woTi-feasance  is  not  enough  to  make 
a  man  a  trespasser  ah  initio.     Two  things,  they  added, 
must  always   concur  to  make  a  man  a  trespasser  ab 
initio :  first,  he  must  be  guilty  of  wes-feasance ;  and 


MISCELLANEOUS    TORTS.  257 

secondly,  the  authority  he  abuses  must  be  one  given 
him  by  tlie  law  and  not  by  an  individual. 

The  authority  these  gentlemen  abused  was  clearly 
one  conferred  on  them  by  the  law.  The  law  gives 
everv  man  a  riirht  to  enter  and  take  his  ease  in  an  inn, 
and  if  they  had  been  guilty  of  misfeasance  (e.g.,  if 
they  had  broken  mine  host's  glasses  or  his  head)  they 
would  have  been  trespassers  ab  initio.  But  they  Avere 
only  guilty  of  nonfeasance,  viz.,  of  declining  to  pay 
for  their  liquor.  The  reason  why  misfeasance  does 
not  make  a  man  a  trespasser  ah  initio  when  the  author- 
ity is  conferred  by  an  individual,  would  seem  to  be 
that  those  who  voluntarily  give  powers  can  limit  or 
recall  them  as  they  please,  while  the  abuse  of  powers 
given  by  the  law  needs  a  more  stringent  protection. 

The  "  Apprentice  of  Lincoln's  Inn  "  has  turned  the 
Six  Carpenters'  Case  into  poetry,  with  what  success  the 
reader  may  judge  from  the  following: — 

"This  case  befell  at  four  of  the  clock 
(now  listeneth  what  I  shall  say) , 
and  the  year  was  the  seventh  of  James  the  First, 

on  a  flue  September  day. 
The  birds  on  the  bough  sing  loud  and  sing  low, 
what  trespass  shall  be  ah  initio. 

It  was  Thomas  Newman  and  five  his  feres 
(three  more  would  have  made  them  nine), 

and  they  entered  into  John  Yaux's  house, 
that  had  the  Queen's  Head  to  sign. 

The  birds  on  the  bough  sing  loud  and  sing  low, 
what  trespass  shall  be  ah  initio. 

They  called  anon  for  a  quart  of  wine 

(they  were  carpenters  all  by  trade) , 
and  they  drank  about  till  they  drank  it  out, 

and  when  they  had  drunk  they  paid. 
The  birds  on  the  bough  sing  loud  and  sing  low, 

what  trespass  shall  be  ah  initio. 


258  LEADING   CASES    SIMPLIFIED. 

One  spake  this  word  in  John  Ridding's  ear 
(white  manchets  are  sweet  and  fine)  : 
"Fair  sir,  we  are  fain  of  a  penn'orth  of  bread 
and  another  quart  of  wine." 

The  birds  on  the  bough  sing  loud  and  sing  low, 
what  trespass  shall  be  ab  initio. 

Full  lightly  thereof  they  did  eat  and  drink 

(to  drink  is  iwis  no  blame) . 
"Now  tell  me  eight  pennies,"  quoth  Master  Vaux; 

but  they  would  not  pay  the  same. 
The  birds  on  the  bough  sing  loud  and  sing  low, 

what  trespass  shall  be  ab  initio. 

"Ye  have  trespassed  with  force  and  arras,  ye  knaves 

(the  six  be  too  strong  for  me) , 
but  your  tortious  entry  shall  cost  you  dear, 

and  that  the  King's  court  shall  see." 
The  birds  on  the  bough  sing  loud  aud  nought  low, 

your  trespass  was  wrought  ab  initio. 

Sed  per  totam  curiam  'twas  well  resolved 

(note,  reader,  this  difference) 
that  in  mere  not  doing  no  trespass  is, 

aud  John  Vaux  went  empty  thence. 
The  birds  on  the  bough  sing  loud  and  sing  low, 

no  trespass  was  here  ab  initio. 


POWERS  OF  SHERIFFS. 


SEMAYKE'S  CASE. 

[5  Coke,  91 ;  1  Smith's  Ld.  Cas.  183.] 

This   case   is    the  principal  authority  for   the    old 
saying  that  "  a  man's  house  is  his  castle." 


MISCELLANEOUS   TORTS.  259 

Berisford  and  Grcsham  were  two  gay  young  sparks 
of  the  sixteenth  centnr3\  They  were  great  churns, 
and  lived  together  in  a  house  at  BUickfriars,  of  which 
they  were  joint  tenants.  Berisford,  as  in  the  manner 
of  gilded  youth,  plunged  deeply  into  debt,  and  one  of 
the  largest  and  most  pressing  of  his  creditors  was  a 
gentleman  Avho  may  or  not  have  been  his  tailor,  a  Mr. 
Semavne,  to  whom  he  "  acknowledged  a  recognizance 
in  the  nature  of  a  statute  staple  ;  "  — a  ceremony  which 
would  be  pretty  much  like  a  Berisford  of  our  day  giv- 
ino- an  I.  O.  U.,  or  otherwise  committing  himself  oa 
paper.  In  these  impecunious  circumstances,  he  was 
lucky  enough  to  die,  and,  by  right  of  survivorship,  the 
ownership  of  the  house  in  Blackfriars  became  vested 
in  the  l)ereaved  Gresham.  Now,  in  that  house  were 
««  divers  goods"  of  the  late  Mr.  Berisford,  and  to 
these,  in  virtue  of  the  little  formality  of  the  statute 
staple,  Semayne  not  unreasonably  considered  himself 
entitled.  Accordingly,  he  gave  instructions  to  the 
sherifls  of  London  to  go  and  do  the  best  they  could  for 
him,  and  those  functionaries,  armed  with  the  proper 
writ,  setoff  for  Blackfriars.  But,  when  they  came  to  the 
houses  Gresham,  who  had  an  inkling  of  what  they  had 
conic  for,  shut  the  door  in  their  faces,  "  whereby  they 
could  not  come  and  extend  the  said  goods."  It  was 
for  thus  "  disturbing  the  execution,"  and  causing  him 
to  lose  the  benefit  of  his  writ,  that  Semayne  brought 
this  action.  Much,  however,  to  his  surprise  and  dis- 
gust, he  did  not  succeed,  for  the  judges  said  that  Gres- 
ham had  done  nothing  wrong  in  locking  the  front  door. 
And  they  resolved  that  the  following  was  the  law  of 
the  land  on  the  subject : — 

1.  The  house  of  every  one  is  his  castle,  and  if  thieves 


260  LEADING   CASES    SIMPLIFIED. 

come  to  a  man's  house  to  rob  or  murder  and  the  owner 
or  his  servants  kill  any  of  the  thieves  in  defence  of  him- 
self or  his  house,  it  is  no  felony. 

2.  It  is  not  lawful  for  the  sheriff  at  the  suit  of  a 
common  person  to  break  into  the  defendant's  house  in 
order  to  execute  any  civil  process  —  the  defendant's 
house  is  his  castle. 

3.  A  man's  house  is  not  his  castle  when  the  king  \9 
a  party,  —  i.e.,  when  the  man  is  wanted  for  a  felony  or 
misdemeanor.  But  even  then,  before  the  outer  door  is 
broken  open,  the  caller  ought  to  ask  to  be  allowed  to 
enter  quietly. 

4.  A  m:in's  house  is  not  his  castle  when  some  on© 
else  has  got  the  better  of  him  in  an  action  of  ejectment. 
In  this  case,  of  course,  it  has  ceased  to  be  his  house 
at  all,  and  therefore  has  ceased  to  be  his  castle. 

5.  A  man's  house  is  not  his  castle  when  the  outer 
door  is  open.  The  sheriff  having  once  gained  admis- 
sion into  the  house  may  break  open  as  many  inner 
doors  as  he  pleases. 

6.  A  man's  house  is  not  his  castle  for  anyone  except 
himself  and  hisfamil//.  He  may  not  shelter  therein  a 
person  who  takes  refuge  in  his  house,  or  who  removes 
his  goods  there  to  prevent  the  sheriff  getting  hold  of 
them. 


MISCELLANEOUS   TORTS.  261 

ACTIONS  AGAINST  MAGISTRATES, 


CREPPS    V.   DURDEX. 

[Cowp.  G40;   1  Smith's  Ld.  Cas.  800.] 

One  Sunday  morning  Peter  Crepps,  instead  of  being 
at  cLiurch  was  selling  hot  rolls  ou  the  streets  of  Lon- 
don to  whoever  would  buy.  As  this  could  not  be  con- 
strued as  a  *'  work  of  necessity  or  charity  "  Peter  was 
brought  before  Magistrate  Durden  and  charged  with 
exercising  his  ordinary  calling  on  the  Lord's  Day,  con- 
trary to  a  statute  of  Charles  II.  which  prohibited  such 
goings  on  on  Sunday  under  a  penalty  of  bs.  Now,  as 
it  happened  that  Peter  had  sold  four  hot  rolls,  the 
worthy  magistrate  fined  him  £1,  that  is  to  say  5*^  a 
roll.  But  Peter  was  dissatisfied  with  this  proceeding, 
and  soon  after  commenced  an  action  of  trespass  against 
the  magistrate.  He  was  successful,  all  the  judges 
agreeing  that  Peter  had  been  fined  15s.  too  much. 
Said  Lord  Mansfield:  "The  penalty  incurred  by 
this  offence  is  5s.  There  is  no  idea  conveyed  by  the 
act  that  if  a  tailor  sews  on  the  Lord's  Day  every  stitch 
he  takes  is  a  separate  offence,  or  if  a  shoemaker  or 
carpenter  works  for  different  customers  at  different 
times  on  the  same  Sunday  that  those  are  so  many  sep- 
arate and  distinct  offences.  There  can  be  but  one  en- 
tire offence  on  one  and  the  same  day." 


262  LEADING    CASES    SIMPLIFIED. 


MALICIOUS  PROSECUTION. 


MUXNS  V.  DUPONT. 

[3  Wash.  C.  Ct.  31 ;  1  Am.  Ld.  Cas.  200.] 

Munns,  the  superiiiteiulcnt  of  ;i  powder  factory  in 
Virginia,  went  up  to  Delaware  to  endeavor  to  find  out 
the  process  employed  in  a  factory  there  owned  by 
Dupont  &  Co.  He  approached  the  workmen,  induced 
one  of  them  to  jDrocure  him  patterns  of  the  machinery 
they  used,  and  also  an  important  piece  of  the  machinery 
itself.  Dupont  &  Co.  were  very  angry ;  tliey  had 
taken  great  pains  to  preserve  the  secrets  of  their  trade, 
and  so  when  they  heard  that  he  had  left  the  place  they 
followed  him  to  Philadelphia,  where  they  had  him  ar- 
rested for  stealing  their  property.  He  was  brought 
back  to  Delaware,  but  in  the  cud  was  acquitted  of  the 
charge.  Then  ho  bronglit  an  action  against  Dupont  & 
Co.  for  malicious  prosecution,  alleging  that  he  had 
been  greatly  damaged  by  the  acts  of  the  firm  in  mali- 
ciously arresting  him  on  a  charge  not  founded  on  truth. 
But  it  was  held  that  this  was  not  the  question  at  all. 
The  question  was,  Was  the  charge  made  maliciously  and 
without  probable  cause — probable  cause  being  defined 
as  "a  reasonable  ground  of  suspicion  supported  by 
circumstances  sufSciently  strong  in  tliemselves  to  war- 
rant a  cautious  man  in  the  belief  that  the  person  ac- 
cused is  guilty  of  the  offence  with  which  he  is  charged." 
Therefore,  if  Dupont  &  Co.  had  this  "  reasonable 
cause,"  it  did  not  matter  at  all  how  much  malice  they 


MISCELLANEOUS   TORTS.  263 

may  have  had  arjainst  Miiiins.  The  court  decided  that 
they  had  reas()nal)le  cause  for  the  charge,  so  Munns 
went  home  without  his  damages. 


SLANDER  ~  DEFAMATORY  WORDS,   WHEN 
ACTIONABLE  AND    WHEN  NOT. 


POtiliARD  V.  LYON. 

[91  U.  S.  225.] 

Mrs.  Pollard,  though  unsuccessful,  did  not  go  to 
law  without  some  provocation.  She  sued  Lvou  for 
slander,  for  having  made,  on  several  occasions,  the 
following  rather  personal  statement  in  regard  to  her  : 
"  I  looked  over  the  transom  and  saw  Mrs.  Pollard 
in  bed  with  Capt.  Denty."  She  averred  that  the 
charge  was  false,  and  that  the  slander  had  damaged 
and  injured  her  in  her  good  name  and  fame  to  the  ex- 
tent of,  at  least,  $10,000.  Notwithstanding  all  this 
she  did  not  recover  anything. 

Defamatory  words  spoken  by  one  person  of  another, 
said  the  court,  are  not  actionable  except  in  four  cases : 

1.  When  they  impute  to  the  party  the  commission 
of  some  criminal  oifence  involving  moral  turptitude  for 
which  the  party,  if  the  charge  is  true,  might  be  in- 
dicted   and    punished.     Mrs.   Pollard's  case    did    not 


264  LEADING    CASES    SIMriJFIED. 

come  within  this  exception,  becanse  the  words  used  by 
Mr.  Lyon  charged  her  with  fornication,  and  fornication 
was  not  an  indicta]>le  offence  in  the  District  of  Colum- 
bia, where  the  words  were  spoken  and  the  action  was 
commenced. 

2.  When  they  impute  that  the  party  is  infected  with 
some  contagious  disease,  where,  if  the  charge  was 
true,  it  would  exclude  him  from  society.  Mrs.  Pol- 
lard's case  was  obviously  not  one  of  this  kind. 

3.  When  they  affect  the  party  in  his  office,  trade,  or 
occupation.  Nor  could  the  lady's  case  fall  within  this 
exception.  But  see  Mr.  Lumby's  case  on  the  next 
page. 

4.  When  they  cause  the  party  special  damage. 
Mrs.  Pollard  had  not  shown  any  "  special  damage  " 
as  that  term  is  understood  in  the  law,  and  therefore 
she  could  not  recover  under  this  head. 

And  therefore  Mrs.  Pollard's  action,  not  having  a 
sino'le  lesral  leg  to  stand  on,  fell,  of  course,  to  the 

COO 

ground. 


L.UMBY  V.  ALLDAY. 

[1  Cromp.  &  J.  301 ;  Big.  Ld.  Cas.  Torts,  87.] 

Mr.  Lumby  had  a  comfortable  situation  as  clerk  in 
the  office  of  the  Birmingham  Gas  Company.  Mr. 
Lumby  had  also  an  enemy.  One  afternoon  this 
enemy,  one  AUday,  meeting  him  in  the  street,  and  not 
caring  the  least  for  the  people  around,  who  heard  all 


MISCELLANEOUS   TORTS.  265 

he  said,  abused  Mr.  Lumby  in  very  forcible,  if  not 
eleo-ant  language.  '*You  are  a  fellow,"  said  he,  "a 
disgrace  to  the  town  ;  you  are  unfit  to  hold  your  situa- 
tion for  your  conduct  with  whores.  You  may  drown 
yourself,  for  you  are  not  fit  to  live,  and  are  a  disgrace 
to  the  situation  you  hold."  Lumby's  only  reply  was 
an  action  for  slander,  which  he  at  once  instituted, 
alleging  that  he  was  a  clerk  in  the  Birmingham  Gas 
Company,  and  that  Allday,  in  order  to  cause  it  to  be 
believed  that  he  was  an  improper  person  to  hold  his 
situation,  spoke  the  words  above  mentioned.  But  the 
court  held  that  no  action  would  lie,  there  being  no 
proof  of  the  slander  having  caused  him  any  special 
damage.  *'The  charge,"  they  said,  "is  not  action- 
able, because  the  imputation  it  contains  does  not  imply 
the  want  of  any  of  those  qualities  which  a  clerk  ought 
to  possess,  and  because  the  imputation  has  no  refer- 
ence to  his  conduct  as  clerk."  ^ 


1  The  defamatory  words  to  be  actionable  per  se  must  affect  him 
in  his  particular  calling,  i.e.,  must  impute  the  lack  of  some  essen- 
tial qualification  for  the  occupation  or  calling  he  is  engaged  in ;  it 
is  not  enough  that  his  general  reputation  is  affected  thereby.  The 
charge  against  Mr.  Lumby  certainly  affected  his  general  reputation, 
but  it  did  not  follow  that,  if  it  was  true,  he  was  unfit  to  be  a 
clerk.  A  most  terrible  roue  might  be  a  very  valuable  book-keeper. 
So  where  D,  who  was  an  attorney,  had  become  involved  in  transac- 
tions on  the  turf,  and  R  said  of  him,  <'he  has  defrauded  his  credi- 
tors, and  has  been  horse-whipped  off  the  course  at  Doncaster," 
these  words  were  held  not  to  be  actionable,  because  the  creditors 
referred  to  were  sporting  creditors,  and  if  his  clients  were  satisfied 
with  his  skill  as  a  lawyer,  it  did  not  follow  that  they  would  with- 
draw their  business  simply  because  he  did  not  pay  his  gambling 
debts.  Ayre  v.  Craven,  2  Ad.  &  E.  2.  On  the  other  hand,  where 
morality  is  required  in  a  particular  calling,  to  impute  immorality  to 
one  pursuing  that  calling  is  actionable  per  se.  Thus,  to  charge  a 
minister  of  the  gospel  with  being  drunk,  or  being  guilty  of  obscene 


266  LEADING   CASES    SIMPLIFIED. 

DAMAGES  IN  ACTIONS  OF  TORT. 


VICARS  V.  WELCOCKS. 

[8  East,  1 ;  2  Smith's  Ld.  Cas.  461.] 

Stored  in  his  rope-yard,  Mr.  Wilcocks  had  a  quantity 
of  excellent  cordage,  which  he  was  disgusted  one  day  to 
find  cut  to  ribbons.  For  reasons  which  the  reporter 
does  not  favor  us  with,  Mr.  Wilcocks'  suspicion  rested 
on  one  Vicars,  the  servant  of  his  neighbor,  Mr.  Joshua 
Oakley,  and  not  being  the  man  to  keep  his  oi)inions  to 
himself,  he  proclaimed  loudly  on  the  houseto[)S  and  in 
language  the  very  plainest,  that  Vicars  was  the  scamp 
who  had  cut  his  cordage.  By-and-by  it  came  to  the 
ears  of  the  worthy  Mr.  Oakley  that  one  of  his  ser- 
vants had  been  damaging  his  neighbor's  property.  He 
was  highly  incensed,  and  although  Vicars  had  been 
engaged  for  a  year,  which  was  not  nearly  expired,  he 
immediatelv  and  without  taking  the  trouble  to  sift  the 
matter,  discharged  him.     Turned  away  by  his  master, 


practices,  would  be  actionable  per  se.  The  student  who  wishes  to 
pursue  this  subject  further  is  referred  to  a  paper  on  "  The  Slauder 
of  a  Person  in  his  Calling,"  in  the  American  Law  lievitio  for  Sep- 
tember, 1881. 

Slander,  i.e.,  oral  defamation,  must  be  carefully  distinguished 
from  libel ;  i.e,  written  or  printed  defamation,  as  the  legal  rules  re- 
lating to  the  actionable  quality  of  each  are  very  different.  Any 
publication,  "  the  tendency  of  which  is  to  degrade  or  injure  another 
person,  to  bring  him  into  contempt,  ridicule  or  hatred,  which  ac- 
cuses him  of  a  crime  punishable  by  law,  or  of  an  act  odious  and 
disgraceful  to  society,  is  a  libel,  and  will  entitle  the  injured  party 
to  damages."    Dexter  v.  Spear,  i  Mason,  115. 


MISCELLANEOUS   TORTS.  267 

the  maligned  Vicars  sought  employment  from  a  Mr. 
Koger  Prudence  ;  but  Roger,  too,  had  heard  of  the  cut 
cordage  and  refused  to  take  the  reputed  proprietor  of 
the  outrage  into  his  service  on  any  terms.  In  this  ex- 
tremity a  happy  thought,  as  the  luckless  litigant  then 
considered  it,  occurred  to  him  :  why  not  bring  an  ac- 
tion against  the  owner  of  the  cordage  for  slander,  and 
lay  as  special  damage  the  dismissal  by  Oakley  and  the 
rejection  by  Prudence.  But  the  result  did  not  corre- 
spond to  his  sanguine  anticipations,  for  the  court 
decided  against  him  on  tvvo  grounds  : 

1.  Because  the  first  special  damage,  viz.  :  the  dis- 
missal by  Oakley,  was  not  the  legal,  but  the  illegal  con- 
sequence of  Wilcocks'  words  —  illegal  for  Vicars  had 
been  engaged  for  a  year,  and  therefore  his  master  had 
no  right  to  dismiss  him  in  this  summary  way.  "  The 
special  damage,"  said  Lord  Ellenborougii,  "  must 
be  the  legal  and  natural  consequence  of  the  words 
spoken.  *  *  *  Hereit  was  an  illegal  consequence, 
a  mere  wrongful  act  of  the  master  for  which  the  defend- 
ant was  no  more  answerable  than  if,  in  consequence  of 
the  words,  other  persons  had  afterwards  assembled  and 
seized  the  plaintiff  and  thrown  him  into  a  horse  pond, 
by  way  of  punishment  for  his  supposed  transgression." 
But  on  this  point  see  the  next  case. 

2.  Because  it  was  far  more  likely  that  Prudence's 
refusal  to  employ  him  arose  from  the  simple  fact  of 
his  having  been  dismissed  from  his  last  place  than 
from  the  reason  for  such  dismissal. 


268  LEADING   CASES   SIMPLIFIED. 

LIUVrLEY  V.  GYE. 

[2E1.&B1.  215.] 

Mr.  Liimley,  the  proprietor  of  Her  Majesty's  Thea- 
tre, London,  had  engaged  a  very  fascinathig  and  ac- 
complished actress,  Mademoiselle  Johanna  Wagner,  to 
appear  at  his  theatre  in  opera,  twice  a  week  for  three 
months  from  the  first  day  of  April,  1852.  Miss  Wag- 
ner was  to  receive  a  salary  of  $500  a  week,  and  she 
expressly  agreed  that  she  would  not,  during  that  time, 
use  her  talents  at  any  other  theatre.  Now  Mr.  Gye, 
a  rival  manager,  and  proprietor  of  Covent  Garden 
Theatre,  when  he  heard  of  this  contract  did  not  like  it 
at  all,  for  he  wanted  a  new  star  at  his  house.  The 
end  of  it  was  that  by  offering  her  a  larger  salary,  Mr. 
Gye  persuaded  Miss  Wagner  to  break  her  engagement 
with  Mr.  Lumley,  and  to  perform  for  him.  For  this 
interference  and  the  damages  which  were  caused  by  the 
actress's  breach  of  contract,  Mr.  Lumley  brought  an 
action  against  Mr.  Gye.^  The  court  held  that  the 
action  would  lie.  "It  was  undoubtedly pinma facie 
an  unlawful  act  on  the  part  of  Miss  Wagner  to   break 


1  Before  taking  this  course,  however,  the  long-headed  Mr. 
Lumley  applied  to  the  Court  of  Chancery  in  the  matter,  and 
asked  an  injunction  to  prevent  her  from  singing  at  Gye's  Tlieatre. 
The  court  granted  the  injunction.  "It  is  true,"  said  Lord  St. 
Leonards,  the  Lord  Chancellor,  "  that  I  have  not  the  means  to 
compel  her  to  sing,  but  she  has  no  cause  of  complaint  if  I  compel 
her  to  abstain  from  the  commission  of  an  act  v^iiich  she  has  bound 
herself  not  to  do,  and  thus  possibly  cause  her  to  fullil  her  engage- 
ment." Lumley  v.  Wagner,  1  De  G.  M.  &  G.  GOG.  But  as  Lumley 
•would  not  have  her  now,  and  Gye  could  not,  the  actress  went  home 
to  reflect  that  honesty  is  perhaps  the  best  policy  after  all. 


MISCELLANEOUS   TORTS.  269 

her  contract,"  said  AVigiitman  J.,  "and  therefore  a 
tortious  act  of  the  defendant  maliciously  to  procure 
her  to  do  so,  and  if  damage  to  the  plaintiff  followed  in 
consequence  of  that  tortious  act  of  the  defendant,  it 
would  seem  *  *  *  that  an  action  on  the  case  is 
maintainable." 

This  case  has  practically  overruled  Vicars  v.  Wilcocks 
on  one  point.  In  Vicars  v.  Wilcochs  it  was  laid  down 
that  the  damage  in  respect  of  which  an  action  is 
brought  must  have  been  the  legal  consequence  of  the 
defendant's  act.  If,  the  court  said,  as  the  consequence 
of  the  defendant's  slander,  a  mob  had  ducked  the 
plaintiff  in  a  horse-pond,  such  a  consequence  would  be 
an  illegal  and  unnatural  consequence  of  the  slander, 
and  could  not  be  taken  into  account  in  estimating  the 
compensation  to  bo  paid  by  the  defendant  to  the  plain- 
tiff. Lumley  v.  Gye^  however,  alters  this  rule  by 
allowing  the  wrongful  act  of  a  third  party  to  forui  part 
of  the  damage  where  such  wrongful  act  might  be  nat- 
urally contemplated  as  likely  to  arise  from  the  defend- 
ant's conduct.^ 


NO  CONTRIBUTION  BETWEEN  DEFENDANTS 
IN  TORT. 


IVIERRYWEATHER  v.  NIXAI^. 

[8  Term  Rep.  186;  2  Smith's  Ld.  Cas.  457.] 

Merryweather  and  Nixan,  in  the  fulness  of  their  ani- 


1  Shirley  Ld.  Cas.  239. 


270  LEADING   CASES    SIJIPLIFIED. 

mal  spirits,  destroj^ed  the  machinery  and  injured  the 
mill  of  one  Starkey.  The  mill-owner  was  not  prepared 
U)  submit  tamely,  and  brought  an  action  against  the 
pair  of  them.  The  jury  gave  him  £840  as  damages, 
and,  instead  of  getting  £420  from  each  he  made  Mer- 
ryweatlier  pay  the  whole  £840.  Merryweather  — 
small  blame  to  him  — did  not  see  why  he  should  pay 
for  Nixan's  w^histle  as  well  as  his  own,  and  sued  his 
«*  pal  "  for  contribution,  that  is  to  say,  for  £420,  In 
fairness,  of  course,  Nixan  ought  to  have  made  no  diffi- 
culty about  paying  it ;  but  he  steadfastly  declined  to 
do  anything  of  the  sort.  The  law  backed  him  up  in 
this  refusal,  for  ex  turjn  causa  non  oritur  actio,  which 
means  that  a  man  shall  not  l)e  allowed  to  found  an  ac- 
tion on  something  that  he  ought  to  be  ashamed  of; 
and  Merryweather  ought  to  have  been  very  much 
ashamed,  indeed,  of  having  injured  Starkey's  mill. 

There  is  no  contribution,  said  the  court,  between 
defendants  in  tort.  In  contract  there  is.  If  there  are 
two  sureties,  and  one  of  them  is  made  to  pay  the 
whole  debt,  he  can  sue  his  brother  surety  for  half 
of  wdiat  he  has  paid.  In  such  a  case  there  is  no  turpis 
causa. 


EVIDENCE,  ETC.  271 


^Yl. — Eyidei?^ce,  Etc. 


HEARSAY  EVIDENCE. 


DIDSBURY  V.  THOMAS. 

[U  East,  323;  2  Smith's  Ld.  Cas.  444.] 

Like  all  laud  cases,  this  is  a  very  dry  one,  and  the  stu- 
dent will  doubtless  be  better  able  to  grasp  the  principles 
which  it  announced,  after  a  short  preliminary  study  of 
the  more  modern  and  more  entertaining  case  of  Bai'- 
dell  V.  Pickwick^  2  Dick.  104,  a  reporter  with  Avhich 
most  readers  are  already  pretty  familiar.  In  the 
course  of  this  trial  before  Mr.  Justice  Starleigh,  Mr. 
Samuel  "VYcUer,  it  will  be  remembered,  was  called  as  a 
witness.  We  give  the  scene  in  the  exact  words  of  the 
genial  reporter :  — 

Sergeant  Buzfuz  now  rose  with  more  importance  than  he  had 
yet  exhibited,  if  that  were  possible,  and  vociferated,  "  Call  Samuel 
Weller." 

It  was  quite  unnecessary  to  call  Samuel  Weller;  for  Samuel 
Weller  stepped  briskly  into  the  box  the  instant  his  name  was  pro- 
nounced ;  and  placing  his  hat  on  the  floor,  and  his  arms  on  the  rail, 
took  a  bird's-eye  view  of  the  trar,  and  a  comprehensive  survey  of 
the  bench  with  a  remarkably  cheerful  and  lively  aspect. 

"  What's  your  name,  sir?  "  inquired  the  judge. 

*'  Sam  Weller,  my  Lord,"  replied  that  gentleman. 


272  LEADING    CASES    SI.MPLIFIKD. 

•'  Do  you  spell  it  with  a  '  V '  or  a  '  W  ?  "  inquired  the  judge. 

"  That  depends  upon  the  taste  and  fancy  of  the  speller,  my  Lord," 
replied  Sam,  "  I  never  had  occasion  to  spoil  it  more  than  once  or 
twice  in  my  life,  but  I  spells  it  with  a  '  V.'  " 

Here  a  voice  in  the  gallery  exclaimed  aloud,  "Quite  right,  too, 
Samivel,  quite  right.  Put  it  down  a  we,  my  Lord,  put  it  down  a 
we." 

"Who  is  that,  who  dares  to  address  the  court?  "  said  the  little 
judge,  looking  up,  "  Usher." 

"  Yes,  my  Lord." 

"  Bring  that  person  here  instantly." 

"Yes,  my  Lord." 

But  as  the  usher  did  not  And  the  person,  he  did  not  bring  him ; 
and,  after  a  great  commotion,  all  the  people  who  had  got  up  to  look 
for  the  culprit,  sat  down  again.  The  little  judge  turned  to  the  wit- 
ness as  soon  as  his  indignation  would  allow  hun  to  speak,  and 
said :  — 

"  Do  you  know  who  that  was,  sir?  " 

"I  rayther  suspect  it  was  my  father,  ray  Lord,"  replied  Sam. 

"  Do  j'ou  see  him  here  now?  "  said  the  judge. 

"  No,  I  don't,  my  Lord,"  replied  Sam,  staring  right  up  into  the 
lantern  in  the  roof  of  the  court. 

"  If  you  could  have  pointed  him  out,  I  would  have  committed 
him  instantly,"  said  the  judge. 

Sam  bowed  his  acknowledgments  and  turned,  with  unimpaired 
cheerfulness  of  countenance,  towards  Sergeant  Buzfuz. 

"Now,  Mr.  Weller,"  said  Sergeant  Buzfuz. 

"Now,  sir,"  replied  Sam. 

"  I  believe  you  are  in  the  service  of  Mr.  Pickwick,  the  defendant 
in  this  case.     Speak  up,  if  you  please,  Mr.  Weller." 

"I  mean  to  speak  up,  sir,"  replied  Sam,  "I  am  in  the  service  o' 
that  'ere  gen'l'm'n,  and  a  wery  good  service  it  is." 

"  Little  to  do  and  plenty  to  get,  I  suppose?  "  said  Sergeant  Buz- 
fuz, with  jocularity. 

"  Oh,  quite  enough  to  get,  sir,  as  the  soldier  said  ven  they  or- 
dered him  three  hundred  and  fifty  lashes,"  replied  Sam. 

"  You  must  not  tell  tis  what  the  soldier,  or  any  other  man  said,  siry" 
interposed  the  judge,  "  it''s  not  evidence.''^ 

Didsbury  v.  Thomas,  illustrates  the  rule,  that  what 
the  other  niau  said  is  not  evidence,  because  the  other 
man  was  not  under  oath  when  he  said  it.     One  Ann 


EVIDENCK,  ETC.  273 

Didsbury  brought  :iii  action  of  ejectment  to  get  hold 
of  a  farm  of  thirty-five  acres,  called  the  Meadow  Farm, 
in  Derbyshire.  She  claimed  it  under  the  will  of  a  Mr. 
Samuel  White.  The  will  was  dated  November  26, 
1754,  and  the  chief  obstacle  to  Ann's  success  was  to 
prove  that  the  lands  Avcrc  the  testator's  at  that  time. 
In  su[)i)ort  of  her  case  she  called  a  witness  who  swore 
that  the  farm  in  question,  together  with  another  farm 
called  Foxlow's  Croft,  was  reputed  to  have  been  Sir 
John  Statham's,  and  to  have  been  purchased  at  the 
same  time  with  it,  by  Samuel  White  of  Sir  John. 
That,  of  course,  alone  did  not  fix  any  particular  date. 
But  to  supplement  this  evidence,  and  make  it  serve  the 
jjood  womau's  cause,  a  deed  was  produced  dated 
March  25,  1752,  whereby  in  cousideration  of  natural 
love  and  aflection  old  Samuel  White  bargained  and 
enfeoff*ed  his  son  Edward  of  Foxlow's  Croft,  "  all 
which  said  farm,  etc.,  have  been  lately  purchased, 
ainongst  other  lands  and  hereditaments,  by  the  said 
Samuel  White,  of  and  from  Sir  John  Statham." 

It  was  clearly  proved  that  Richard,  the  testator's 
eldest  son,  had  taken  possession  of  and  occupied  the 
Meadow  Farm  at  the  same  time  that  his  youuger 
brother  Ned  had  begun  to  occupy  Foxlow's  Croft ; 
and  also  that  the  person  immediately  preceding  Richard 
in  the  occupation  of  the  Meadow  Farm  was  tenant  to 
Sir  John  :  and  the  plaintiff 's  counsel  argued  that  un- 
der the  circumstances  the  evidence  of  reputation  could 
be  received.  It  was  held,  however,  that  the  evidence 
could  not  be  received,  as  it  Avas  only  hearsay. 

Hearsay  —  z.e.,  what  the  other  man  said,  or  to  s[)eak 
more  correctly,  statements  made  by  a  person  not. 
called  as  a  witness  — is  not  admissible  in  evidence  in 


274  LEADING    CASES    SIMPLIFIED. 

courts  of  law.  But,  us  usual,  we  no  sooner  announce 
the  rule  than  we  come  upon  the  exceptions.  These 
exceptions  are  as  follows.^ 

1.  Hearsay  is  admissible^  respecting  matters  of  pub- 
lic and  general  interest,  such  as  the  boundaries  of  coun- 
ties or  townships,  claims  of  highways,  etc.  The 
reason  for  the  exception  in  this  case  is  that  the  origin 
of  such  rights  is  generally  obscure  and  incapa])le  of 
better  proof;  that  people  living  in  the  district  are 
naturally  interested  in  local  matters  and  likely  to  know 
about  them,  and  that  reputation  cannot  well  exist 
without  the  concurrence  of  many  jiersons  who  are 
strangers  to  one  another  and  yet  equally  interested. 
Such  declarations,  however,  to  be  evidence  must  have 
been  made  ante  litem  'tnotam,,  that  is,  before  any  dis- 
pute on  the  suject  has  arisen.  They  must  also  be  con- 
fined to  general  matters,  and  not  touch  particular 
facts.-  Illustrations.  —  The  question  is  whether  a 
road  is  pul)lic.  Astatement  by  A.  (deceased),  that  it  is 
public,  is  admissil)le.^  A  statement  by  A.  (deceased), 
tliat  he  planted  a  willow,  still  standing,  to  show  where 
the  l)oundary  of  the  road  had  been  when  a  boy,  is 
inadmissible.^ 

2.  Hearsay  is  admissible  in  matters  of  pedigree. 
Illustration.  —  The  question  is  which  of  three  sons 
•(  Fortunatus,  Stephanus,  and  Achaicus),  born  at  a  birth, 


1  On  this  subject  the  student  will  do  well  to  consult  Mr.  Justice 
Stephen's  admirable  Digest  of  the  Law  of  Evidence.  From  this 
work  I  have  takea  the  illustrations  given  in  the  remainder  of  this 
case. 

2  Shirley  Ld.  Cas.  243. 

3  Crease  v.  Barrett,  1  Cromp.  M.  &R.  919. 
*  Reg  V.  Bliss,  7  Ad.  &  E.  550. 


EVIDENCE,  ETC.  275 

is  the  eldest.  The  fact  that  the  father  said  that  Achaicus 
was  the  youngest,  and  he  took  their  names  from  St. 
Paul's  Epistles  (See  1  Cor.  xvi.  17),  and  the  fact  that 
a  relation  present  at  the  birth  said  that  she  tied  a 
string  around  the  second  child's  arm  to  distinguish  it, 
are  relevant."  Such  declarations,  together  with  in- 
scriptions on  tombstones,  entries  in  family  Bibles,  and 
the  like,  are  admissible  on  the  principle  that  they  are 
the  natural  effusions  of  a  person  who  must  know  the 
truth  and  has  no  motive  for  misrepresenting  it. 

3.  An  admission  previous! >/  made  hy  a  party  to  the 
action,  or  one  interested  in  it  is  admissible.  Illustra- 
tion. —  The  assio;nee  of  a  bond  sues  the  obligor  in  the 
name  of  the  obligee.  An  admission  on  the  part  of  the 
ol)ligec,  that  the  money  due  has  been  paid,  is  admissi- 
ble on  the  part  of  the  defendant. 

4.  Au  admission  made  by  an  agent  authorized  to 
malce  it,  either  expressly  or  by  the  conduct  of  the  prin- 
cipal, is  admissible.  Illustration.  — The  question  is, 
whether  a  parcel,  for  the  loss  of  which  a  railroad 
company  is  sued,  was  stolen  by  one  of  their  servants. 
Statements  made  by  the  station-master  to  a  policeman, 
suggesting  that  the  parcel  had  been  stolen  by  a  porter 
are  admissible  as  against  the  railroad.^ 

5.  A  voluntary  confession  made  by  a  person  charged 
with  a  crime,  is  admissible. 

6.  Dying  declarations  as  to  cause  of  death  are  ad- 
missible  in  murder  and  manslaughter  cases. 

7.  Hearsay  is  admissible  as  part  of  the  transaction^ 
or  as  it  is  technically  called,  as  part  of  the  res  gestce. 


1  Kirkstall  Brewery  Co.  v.  Furness  R.  Co.,  L.  R.  9  Q.  B.  468. 


276  LEAT>TNG    CASES    SIMPLIFIED. 

Thus  A.'s  declaration  in  paying  money  that  he  pays  a3 
agent  ot'B.,  is  admissible.^ 

8,  Hearsay  is  admissible  as  to  declarations  of  per- 
sons since  deceased,  made  in  the  ordinary  course  of 
their  business.  On  this  point  see  Price  v.  Torrington,^ 
a  case  of  deliveiy  of  beer. 

9.  Hearsay  is  admissible  as  to  declarations  by  per- 
sons since  deceased,  against  their  interest.  On  this 
point  see  Higham  v.  Ridgway,^  a  case  of  delivery  of 
babies. 


DECLARATIONS  BY  PERSONS  SINCE  DE- 
CEASED. 


I»RICE  V.  EARL  OF  TORRINGTOl^^^. 

[Salk.  285;  1  Smith's  Ld.  Cas.  390.] 

This  was  an  action  by  a  brewer  against  the  defend- 
ant for  beer  which  his  household  had  drunk.  The 
practice  at  the  plaintiff's  brewery  was  for  the  dray- 
men who  had  taken  out  beer  during  the  day  to  sign 
their  names  in  a  book  kept  for  the  purpose  before  they 
hied  them  home  for  sweet  repast  and  conjugal  joys. 
The  particular  drayman  who  had  taken  Lord  Torring- 


1  Whart.  on  Ev.,  sect,  262. 

»  Fost. 

«  Post,  p.  277. 


EVIDENCE,  ETC.  277 

ton  his  beer  was  dead,  but  he  had  duly  made  his  entry, 
and  the  question  was  whether  it  was  admissible  evi- 
dence for  the  phiintiff.  It  was  held  that  it  was,  on  the 
ground  that  it  was  an  entry  made  by  a  disinterested 
person  in  the  ordinary  course  of  his  business. 


DECLARATIONS  BY  DECEASED   PERSONS 
AGAINST  THEIR  INTEREST. 


HIGHAM  V.   RIDGWAY. 

[10  East,  109 ;  2  Smith's  Ld.  Cas.  330.] 

When  was  William  Fowden  born?  This  was  the 
interesting  question  on  which  depended  vast  estates  in 
the  county  of  Chester.  Elizabeth  Higham  laid  claim 
to  them  by  virtue  of  a  certain  remainder ;  but  those 
who  contested  her  right  said  that  her  remainder  had 
been  barred  by  a  recovery  suffered  on  April  16,  1789, 
by  one  William  Fowden,  since  deceased.  Mrs. 
Hiirham's  answer  to  this  was  that  on  the  dav  named 
William  Fowden  had  not  yet  come  of  age,  and  was 
therefore  incapable  of  suifering  recoveries,  and  barring 
the  remainders  of  good  honest  women  like  herself. 
So  it  w^as  that  it  was  strenuously  disputed  on  which 
side  of  April  1<),  1768,  the  late  Mr.  Fowden  had  been 
born.  Was  he  or  was  he  not  of  age  on  April  16, 
1789?  It  was,  of  course,  the  object  of  Mrs.  Highara 
to  make  out  that  he  was  born  later  than  April  16  ; 
and  the  most  important  piece  of  evidence  she  adduced 


278  LEADING    CASES    SIMPLIFIED. 

in  support  of  that  view  was  an  entry  in  tlie  diary  of  a 
man-midwife  who,  like  Fowden,  had  long  since  joined 
the  majority.  In  that  diary,  under  the  head  of  April 
22,  1768,  there  was  this  important  entry:  — 

"  AV.  Fowden,  jun.'s,  wife, 
"  Filius  circa  hor.  3  post  merid.  natus  H. 
"  "VY.  Fowden,  jun., 
*'April  22,  filius  natus 

"Wife,  £1  6s.  Id. 
''Paid,  25  Oct.,  17G8." 

This  entry  was  admitted  in  evidence  on  the  ground 
that  it  was  a  declaration  against  interest,  the  law 
shrewdly  suspecting  that  no  one  would  be  such  a  fool 
as  to  put  himself  down  as  paid  when  he  had  not  been. 

"  The  entry  made  by  the  party,"  said  Lord  Ellen- 
BOROUGH,  C.  J.,  *'  was  to  his  own  immediate  prejudice 
when  he  had  not  only  no  interest  to  make  it  if  it  was 
not  true,  l)ut  he  had  an  interest  the  other  Avay  not  to 
discharge  a  claim  which  it  appears  from  other  evidence 
that  he  had.  The  evidence,  therefore,  in  this  case  was 
properly  received." 


PRESUMPTION  OF  DEATH  FROM  ABSENCE. 


NEPEAN  V.  DOE. 

[2  Mee.  &  W.  910;  2  Smith's  Ld.  Cas.  466.] 

The  effect  of  tliis  case  is  that  when  a  person  goes 
abroad  and  is  not  heard  of  for  seven  years,  the  law  pre- 


EVIDENCE,  ETC.  27J> 

sumes  him  to  be  dead,  unless  the  circumstances  of  the 
case  are  such  as  to  account  for  his  not  being  heard  of 
without  assuming  his  death,  but  docs  not  presume 
that  he  died  at  any  particuhir  period  during  those 
seven  years. 


ESTOPPELS. 


DUCHESS  OF  KINGSTON'S  CASE. 

[20  How.  St.  Tr.  3'Jl;   Smith's  Ld.  Cas.  573.] 

One  of  the  most  beautiful  women  of  the  hist  century 
was  Sarah  Chudleigh.  AYithout  going  minutely  into 
her  strange  eventful  history,  it  may  be  said  that  in  a 
weak  moment  she  fell  in  love  with  a  Captain  Harvey, 
and  married  him.  Married  in  haste  she  repented  at 
leisure.  Being,  however,  of  an  ingenious  turn  of  mind, 
she  determined  to  destroy  the  evidence  of  the  mar- 
riage, and  with  that  object  went  down  to  the  church 
where  the  ceremony  had  been  performed,  and  tore 
the  leaf  out  of  the  register.  She  had  scarcely  accom- 
plished this  feat  when  the  news  reached  her  that  her 
husband  had  succeeded  to  a  peerage,  and  was  dving. 
To  reap  the  benefit  of  such  good  fortune,  she  went 
straight  back  to  the  church,  and  replaced  the  pur- 
loined leaf.  Her  Jnisband,  however,  was  not  obliging 
enough  to  die,  and,  as  the  lady  was  very  anxious  to 
marry  the  Duke  of  Kingston  and  become  a  duchess, 


280  LEADING    CASKS    SnfPLIFIED. 

she  procured  an  irregular  divorce  from  him  and  mar- 
ried the  duke.  After  a  few  years  the  duke  died, 
leaving  his  widow  a  very  large  fortune.  This  the 
duke's  heirs  wei*e  not  disposed  to  allow  her  to  enjoy 
in  peace.  They  prosecuted  her  f()rl)igamy,  that  is,  of 
course,  for  marrying  the  Duke  of  Kingston  Avhen  she 
had  not  been  legally  divorced  from  her  first  husband. 
The  defence  to  the  charge  was  that  the  divorce  was  a 
legal  one,  and  left  her  free  to  marry  the  Duke  of 
Kingston  or  any  other  man  or  duke. 

The  judges  were  required  to  answer  the  following 
questions  :  — 

1.  If  a  spiritual  court  decides  that  a  marriage  is  null 
and  voidj  is  its  decision  so  conclusive  on  the  subject 
that  the  marriage  cannot  be  proved  against  one  of  the 
parties  in  an  indictment  for  bigamy? 

2.  Supposing  the  spiritual  court's  decision  is  final, 
may  counsel  for  the  prosecution  destroy  its  effect  by 
showing  that  it  was  brought  about  by  fraud  and  collu- 
sion ? 

The  first  question  was  answered  in  the  negative,  so 
that  it  did  not  much  matter  to  the  duchess  what  the 
answer  to  the  second  was.  That  question,  however, 
the  judges  answered  in  the  affirmative,  thus  doubly 
settling  her. 

Tliis  is  the  *'  leading  case  "  on  the  law  of  Estoppel. 
The  definition  of  estoppel  as  given  by  Lord  Coke  is 
generally  acknowledged  to  be  a  little  startling,  and  to 
have  an  air  of  immorality  about  it,  which  only  the 
public  interest  in  putting  an  end  to  litigation,  and  the 
reasonableness  of  refusing  to  allow  people  to  contradict 
statements  on  the  truth  of  which  others  have  acted, 
can  justify.     "An  estoppel,"    says  Coke,  «<  is  where 


EVIDENCE,  ETC.  281 

a  man  is  concluded  by  his  own  act  or  acceptance  to 
say  the  truth,"  and  he  divides  estoppels  into  three 
kinds,  viz. :  1.  By  matter  of  record.  2.  By  deed. 
3.  By  conduct. 

1.  When  the  parties  and  the  points  litigated  are  the 
same,  a  former  judgment  rendered  is  conclusive.  As 
we  have  ah'eady  seen  (Marriott  v.  Hampton)  interest 
reipublicae  lit  set  Ji)ns  litium. 

2.  To  execute  a  deed  is  like  executing  a  murderer 
a  very  solemn  thing  and  therefore  whatever  assertion 
a  man  lias  made  in  his  deed  he  must  stand  by.  If  you 
execute  a  bond  in  the  name  of  Obadiah  you  are  es- 
topped from  pleading  thjit  your  name  is  Augustus. 
So,  though  a  person  who  has  given  an  ordinary  receipt 
may  show  that  he  has  never  really  received  the  money, 
a  person  who  has  given  a  receipt  under  seal  cannot. 

Two  qualifications  of  the  doctrine  of  estoppel  by 
deed  must  be  remembered:  1.  Although  a  person 
acknowledges  in  his  deed  that  he  has  received  the  con- 
sideration money  for  the  service  he  undertakes  to  per- 
form, he  may  nevertheless  show  that  as  a  matter  of 
fact  he  has  not  received  it.  2.  A  person  who  is  sued 
on  his  deed  may  show  that  it  is  founded  on  fraud  or 
illegality,  and,  if  he  proves  it,  the  document  becomes 
worthless.  The  great  case  on  this  subject  is  Collins  v. 
Blantevn,^  which  we  have  already  seen. 

3.  If  a  man  so  conducts  himself,  whether  intention- 
ally or  not,  that  a  reasonable  person  would  infer  that  a 
certain  state  of  facts  exists,  and  acts  on  that  inference, 
he   will    afterwards    be    estopped    from    denying   it.^ 


Ante,  p.  89;  Shirley  Ld.  Cas.  2G2. 
2  Cornish  v.  Abington,  4  Hurl.  &  N.  647. 


282  LEADING   CASES   SIMPLIFIED. 

Once  in  England  ivn  old  gentleman  induced  a  niece 
to  coine  and  live  with  him  and  nurse  his  old  age  by 
promising  to  rememl)er  her  in  his  will.  But  the  old 
deceiver  did  not  remember  her.  It  was  held,  how- 
ever, in  an  action  against  the  executors,  that  he  was 
estopped  from  omitting  to  make  some  provision  for 
her,  as  she  had  altered  her  position  in  consequence  of 
his  representations.^  Some  years  later  in  California, 
there  was  a  Good  Templar  who  kept  a  grocery.  After 
a  while  some  one  discovered  thatlicjuor  w^as  being  sold 
in  the  store.  The  proprietor  protested  that  the  liquor 
did  not  belong  to  him  but  to  his  clerk.  A  creditor  of 
the  ch-rk  hearing  this,  attached  it  for  a  debt,  as  be- 
longing to  the  clerk.  Then  the  Good  Templar  finding 
his  property  about  to  be  taken  from  him,  declared  his 
ownership  and  tried  to  get  the  liquor  back.  But 
it  was  too  late.  "If  parties,"  said  Bexxett,  J., 
"choose  to  make  untrue  statements  by  which  others 
are  injured,  they  should  be  estopped  to  unsay  that 
which  they  have  said.  Estoppels,  in  general,  are 
odious,  but  in  merchantile  and  ordinary  business 
transactions,  where  men  must  trust  to  the  ajipear- 
ances  and  declarations  of  parties  because  thev  have 
no  other  means  of  information  in  such  cases,  the  courts 
have  been  inclined  to  extend  the  list  of  estoppels."  ^ 


1  Loffus  V.  Maw,  32  L.  J.  (Ch.)  49. 

"^  Mitchell  V.  Reed,  9  Cal.  204. 


EVIDENCE,  ETC.  283 

LOCAL  AND  TRANSITORY  ACTIONS. 


MOSTYX  V.  F^VBRIGAS. 

[Cowp.  101 ;  1  Smith's  Ld.  Cas.  766.] 

By  the  Peace  of  Paris,  which  in  1763  put  an  end  to 
the  Seven  Years'  War,  the  island  of  Minorca,  in  the 
Mediterranean,  became  a  British  possession.  In  1770 
the  srovernor  of  this  island  was  a  frentleinan  named 
Mostyn,  who,  apparently,  was  of  opinion  that  he  was 
entitled  to  play  the  part  of  an  absolute  and  irresponsi- 
ble despot  on  his  small  stage.  One  of  his  subjects, 
however,  a  Mr.  Fabrigas,  did  not  coincide  with  him  in 
this  view,  and  he  rendered  himself  so  obnoxious  that 
the  governor  laid  hands  suddenly  on  him,  and,  after 
keeping  him  imprisoned  for  a  week,  banished  him  to 
Spain.  It  was  for  this  arbitrary  treatment  that  Fabri- 
gas now  brought  an  action  at  Westminster,. in  England. 
Mostyn  objected  that,  as  the  alleged  trespass  and  false 
imprisonment  had  taken  place  in  Minorca,  the  action 
could  not  be  brought  in  England.  But  it  was  held 
that,  as  the  cause  of  action  was  of  a  transitory  and 
not  a  local  nature,  it  could.  And  a  British  jury  gave 
Fabrigas  £3,000  damages. 

This  is  the  leading  case  on  "local"  and  "transi- 
tory" actions.  All  actions  fall  within  one  or  the 
other  of  these  two  divisions.  Those  which  are  re- 
quired to  be  tried  in  a  particular  county  because  the 
subject-matter  is  connected  with  the  particular  locality 


284  LEADING    CASES    SIMPLIFIED. 

must  be  tried  there.     Others   are  transitory,  and  may 
be  tried  wherever  the  parties  can  be  found. 


USE  OF  HIGHWAYS  — PLEADING. 


DOVASTON  V.  PAYNE. 

[2  H.  Black.  527;  2  Smith's  Ld.  Cas.  200.] 

Dovaston's  complaint  against  Payne  was  that  he  had 
taken  and  impounded  his  cattle  without  rhyme  or 
reason  :  — 

"  My  kine  are  gone,  and  I  have  no  more, 

Which  Payne  hath  caught  and  doth  keep  away," 

was  his  melancholy  refrain. 

Called  on  for  an  explanation,  Payne  said  he  had 
caui>ht  the  beasts  breaking  down  his  fences  and  ruining 
his  crops  ;  he  had  taken  them  damage  feasant ^  in  fact. 
Such  were  the  replevin  and  the  avowry.  It  was  now 
Dovaston's  turn  to  plead,  which  he  did  to  this  effect :  — 

«'  Well  but,  my  friend,  if  they  were,  as  you  say,  m 
your  field  damagmg  your  crops,  and  all  the  rest  of  it, 
it  was  entirely  your  fault  for  not  keeping  your  fences 
in  proper  condition.  There  they  were, — the  sweet 
innocents,  —  'in  the  highway,'  and  how  could  they 
know  whore  they  had  a  right  to  go  and  where  they 
had  not?" 


EVIDKXCE,  ETC.  285 

The  weak  point  of  this  pleading,  — prol)ably  drawn 
by  some  youthful  lawyer  called  the  day  before,  — was 
that,  by  alleging  that  his  cattle  were  ♦'  in  "  the  high- 
way instead  of  ''passing  along,"  Dovaston  had  not 
excluded  the  chance  of  their  Ijei ng  ti'cspassers.  They 
might  very  well  be  "  in  "  the  highway  without  being 
quietly  and  peaceably  "  passing  along"  it,  like  solier, 
well-conducted  cattle  ;  and  so  the  defendant  had  judg- 
ment. 

On  the  subject  of  certainty  in  pleading,  which  was 
so  much  thought  of  in  the  days  of  special  pleading, 
this  case  has  lost  much  of  its  importance,  since  the 
adoption  of  the  Codes.  It  is,  however,  still  a  leading 
case  on  the  rights  of  the  public  over  a  highway. 


The  Principal  Maxims  of  the  Law.^ 


Acta  exteriora  indicant  interiora  secreta. 

Overt  acts  dedare  a  man's  intention!^  and  motives. 
Actio  personalis  moritur  cum  persona. 

A  personal  right  of  action  ceases  at  death. 
Actus  Dei  nemini  facit  injnriam. 

The  act  of  God  does  injury  to  no  man. 

Benigne  f  aciendoe  sunt  interpretationes  propter  siraplicitatem 

laicorura,  ut  res  magis  valeat  qnara  pereat. 

Inst  rum  nts  ought  to  be  construed  lenienthj^  leith  aUoivances 

made  for  the  ignorance  of  people  xvho  are  not  laicyers,  so 

that  the  transaction  may  be  suppoHed,  and  not  rendered 

nugatory. 

Caveat  emptor. 

Tlie  buyer  must  look  after  himself. 
Cessante  ratione,  cessat  lex. 

IVIien  the  reason  for  a  law  ceases  to  exist,  so  also  does  the 
Jaw  itself. 
Contemporanea  expositio  est  optima  et  fortissima  in  lege. 
The  best  ivay  of  getting  at  the  meaning  of  a>i  instrument  is 
to  ascertain  when  and  under  what  circumstances  it  tvas 
made. 
Cuilibet  in  susi  arte  perito  credendum  est. 

Every  man  is  an  expert  in  the  particidar  branch  of  business 
he  is  familiar  with. 


'  With  some  alterations  and  additions  from  Shirley's  Ld.  Cas., 
291-294. 

(287) 


288  THE    rUINCIPAL    MAXIMS    OF    TlIK    LAW. 

Delegatus  iion  potest  delegare. 

A  person  having  mere  delegated  authority  cannot  himself 
delegate  that  author ity  to  another. 
De  miiiiiuis  nou  curat  lex. 

The  la/0  doe-i  not  trouble  it'telf  about  trifles. 
Donius  sua  est  cuiquc  tutissimum  refugium. 

A  ni'ui's  house  is  his  safest  retreat. 

Ex  dole  male  non  oritur  actio. 

No  cause  of  action  can  groio  out  of  a  questionable  transaction. 
Ex  undo  pacto  nou  oritur  actio. 

In  order  to  ground  an  action,  an  agreement  must  have   a 
consideration. 
Expedit  reii)uhlic;Te  ne  quis  sua  re  male  utatur. 

The  good  of  the  State  requires  a  man  not  to  injure  his  own 
property. 
Expressum  facit  cessare  taciturn. 

When  all  the  terms  are  expressed^  nothing  can  be  iw2)Iied. 

Ignorantia  facti  excusat,  igaorantia  juris  uon  cxcusat. 

A  man  may  be  pardoned  for  mistaking  facts,  but  no'  f^r 
mistaking  the  law. 
In  contractis  tacite  iusunt  qujB  sunt  nioris  et  consuetudinis. 
Persons  are  piresumed  to  contract  loith  reference  to  habits 
and  customs. 
In  jure  non  remota  sed  proxima  causa  spectatur. 

It  is  not  the  remote,  but  the  immediate  cause  that  the  law 
looks  c(t. 
Interest  reipublicce  ut  sit  finis  litium. 

It  is  the  interest  of  the  State  that  litigation  should  end. 

Lex  non  cogit  ad  impossibilia. 

The  law  does  not  compel  a  man  to  perform   impossibilities. 
Lex  semper  intendit  quod  couvenit  rationi. 

The  laio  must  be  taken  to  intend  what  is  reasonable. 
Lex  spectat  naturae  ordinem. 

The  law  takes  into  account  the  natural  successio7i  of  things. 


THE    rUINCIPAL    MAXIMS    OF   THK    LAW.  2bD 

Modus  ot  conventio  viiicunt  lc<?em. 

Pert>07is  mwj  contract  Ihenmelves  out  of  their  legal  liabilities. 

Non  (lat  qui  non  habct.  ' 

A  man  cannot  give  lohat  he  has  not  got. 
Non  omnium  qufe  a  majoribus  constituta  sunt  ratio  reddi 

potest. 

A  reason  cannot  be  given  for  everijthing  that  has  been  es- 
tablished by  oar  ancestors. 

Omnia  prsesumnntur  contra  spoliatorem. 

Every  presumption   is  made   to    the  disadvantage   of  the 
v:rong  doer. 
Omnia  prajsumuntur  rite  ct  sollenniter  esse  acta. 

It  is  presumed  that  all  the  usual  form(dilies  have  been  com- 
plied loith. 
Omuls    ratihibitio    retrotrahitur    et   mandate   priori    icqui- 
paratur. 

A  ratification  is  taken  back  and  made  equivalent  to  a  pre- 
vious command 
Optima  est  lex  quae  minimum  relinquit  arbitrio  judicis,  opti- 
mus  judex  qui  minimum  sibi. 

The  best  system  of  law  is  that  which  leaves  the  lenst  to  the 
discretion  of  the  judge;  the  best  judge  is  he  loho  leaves 
the  leafit  to  his  oion  discretion. 

Potior  est  conditio  possidentis. 

The  one  in  possession  has  the  "  inside  track." 

Qui  facit  per  alium,  facit  per  se. 

He  who  does  a  thing  by  another  does  it  himself. 
Qui  hseret  in  litera  lueret  in  cortice. 

He  who  harps  on  a  mere  ivrittKn  insti-ument  does  not  get  ai 
the  x)ith  of  the  matter. 
Qui  prior  est  tempore,  potior  est  jure. 

The  laio  favors  the  earlier  in  point  of  time. 
Qui  sentit  commodum,  sentire  debet  et  onus. 

Benefit  and  burden  ought  to  go  hand  in  hand. 

19 


290         THE  rRiNCirAL  maxims  of  the  law. 

Quicqiiid  plantatur  solo,  solo  ccdit. 

Whatever  is  planted  in  the  ground  becomes  part  of  the  ground. 
Quilibet  potest  renunciare  juri  pro  se  introducto. 

A  man  man  wa/re  a  right  established  for  his  own  benefit. 
Quod  fieri  non  debet  factum  A-alet. 

WJiat  ought  never  to  have  been  done  at  all,  if  it  has  been 
done,  may  be  valid. 
Quod  subintelligitur,  non  deest. 

Wliat  is  to  be  understood,  is  as  good  as  if  it  were  there. 
Quoties  in  verbis  nulla  est  ambiguitas,  ibi  nulla  expositio 
contra  verba  fienda  est. 

When  the  language  of  a  tvritten  instrument  is  perfectly 
plain,  no  construction  will  be  made  to  contradict  the  lan- 
guage. 

Res  inter  alios  acta  alteri  nocere  non  debet. 

A  man  ought  not  to  be  prejudiced  by  what  has  taken  place 
between  others. 
Res  ipsifi  loquitur. 

The  thing  itself  speaks. 
Res  judicata  pro  veritate  accipitur. 

The  decision  of  a  court  of  justice  is  assumed  to  be  correct. 
Respondeat  superior. 

A  mnn  mu^t  answer  for  his  dependents. 

Salus  populi  suprema  lex. 

The  ivelfire  of  the  State  is  the  highest  law. 
Sic  utere  tuo  ut  alienum  non  ladas. 

Make  such  a  use  of  your  own  property  as  not  to  injure  your 
neighbor''  s. 
Solvitur  secundum  modum  solventis. 

Payment  is  to  be  made  as  the  payer  pleases. 
Spondes  peritiam  artis. 

If  your  position  implies  skill,  you  must  use  it. 

JJbi  jus,  ibi  remedium. 

Where  there  is  a  right,  there  is  a  remedy. 


THE   PRINCIPAL    MAXIMS    OF   THE    LAW.  291 

Verba  chart.irum  fortius  accipiuntur  contra  proferentem. 
The  language   of  an  instrument   is   to  be  taken   strongly 
against  the  person  tvhose  language  it  is. 
Verba  gcneralia  restringuuntur  ad  habilitatem  rci  vel  per- 
sonam. 

General  words  are  to  be  tied  down  and  interpreted  accord- 
ing to  their  context. 
Vigilantibus  non  dorniicntibut  jura  subveniunt. 

To  get  the  lao's  help  a  man  must  not  go  to  sleep  over  his 
onn  interests. 
Volenti  non  fit  injuria. 

The  man  tcho  is  the  author  of  his  own  hurt  has  no  right  to 
complain. 


Table  of  Abbreviations  in  this  Yolume. 


Ad.  &  E.  .  .  .  Adolphus  and  Ellis's  Queen's  Bench  Re- 
ports, 1834-1840.1 

Ala Alabama  Supreme  Court  Reports,  1840. 

Allen     ....  Allen's  Massachusetts  Reports,  186 1-1 867. 
Am.  Dec.  .     .     .  American  Decisions,  1878-^ 
Am.  Ld.  Cas.      .  American  Leading  Cases. 
App.  Cas.      .     .  English  Appeal  Cases,*^  1876. 

Barb Barbour's  New  York  Supreme  Court  Re- 
ports, 1847-1875. 

Barn.  &  Adol.  .  Barnwell  and  Adolphus' s  King's  Bench 
Reports,  1830-1834. 

Barn.  &  Aid.  .  Barnwell  and  Alderson's  King's  Bench 
Reports,  1817-1822. 

Barn.  &  Cress.     .  Barnwell  and  CressweU's  English  King's 

Bench  Reports,  1822-1830. 

1  The  second  series  of  these  reports,  extending  from  1841  to  1852, 
is  sometimes  cited  Ad.  &  E.  (n.  s.),  but  the  correct  citation  is  Q.  B. 

2  This  is  a  work  published  by  A.  L.  Bancroft  &  Co.,  San  Fran- 
cisco, and  containing  all  the  cases  of  general  value  and  authority 
decided  in  the  courts  of  the  several  States  from  the  earliest  issue 
of  the  State  Reports  to  the  year  18G9.  About  thirty-tlirce  volumes 
are  now  out,  reaching  to  1838.  It  is  edited  by  A.  C.  Freeman,  Esq., 
the  author  of  Treatises  on  Executions  and  Judgments,  and  is  of 
great  value  to  the  profession,  as  the  number  of  State  Reports  nm 
now  into  the  thousands,  and  a  complete  collection  of  them  is  some- 
thing quite  beyond  the  means  of  the  majority  of  lawyers. 

3  In  this  series  are  reported  the  judgments  on  appeal  of  the  Eng- 
lish House  of  Lords  and  Privy  Council. 

(293) 


294  TABLE    OF   ABBREVIATIONS. 

Best  &  S.  .  .  Best  and  Smith's  Queen's  Bench  Reports, 
18G1-1870. 

Bio-.  Ld.  Cas.  .  Bigelow's  Leading  Cases  on  Bills,  Notes, 
Bills  &  Notes  .       and  Checks  (2d  ed.)-     Boston,  1880. 

Bif.  Ld.  Cas.  .  Bigelow's  Leading  Cases  on  Torts  Boston, 
Torts     ...       1875. 

Biuo- Bingham's  English  Common  Pleas  Re- 
ports, 1822-1834. 

Bing.  (n.  c).  .  Bingham's  English  Common  Pleas  Re- 
ports (new  cases),  1834-1840. 

Black  ....  Black's  United  States  Supreme  Court  Re- 
ports, 180 1-1862. 

Black.,  IL      .     .  See  H.  Black. 

Black.,  W.     .     .  See  W.  Black. 

Blackf.      .     .     .  Blackford's  Indiana  Reports,  1817-1847. 

Bosw Bosworth's    New    York    Superior    Court 

Reports,  1857-18G3. 

Brock.  .  .  .  Brockenbrough's  Reports  of  Chief  Justice 
Marshall's  Decisions,  1802-1833. 

Burr Burrow's  English  King's  Bench  Reports, 

1757-1771. 

Cal California  Supreme  Court  Reports,  1850- 

/Camp Campbell's   English  Nisi   Prius  Reports, 

1808-1816. 
Car.  &  V.      .     .  Carrington    and    Payne's    English    Nisi 

Prius  Reports,  1823-1841. 

r  English  Common  Bench  (or  Pleas)  Re- 
C   B 
\       ports,  old  and  new  series,  1845-1856  ; 

C.B.(N.s.)  .     [      1856-1865. 

Cent.  L.  J.     .     .  Central  Law  Journal,  1874- 

Coke     ....  Coke's    English   King's   Bench   Reports, 

1572-1616. 
Conn Connecticut     Supreme     Court     Reports, 

1814- 
Cow Cowen's  New  York  Reports,  1823-1829. 


TABLE    OF    AHnRKVIATIONS. 


295 


Cowp.  ,     .     . 

Croke  .     . 
Croini).  &  J.   . 
Cromp.  M.  &  R. 
Cush.    .     .     . 


De  G.  M.  &  G. 

Denio    . 
Dill.      .     .     . 


Dougl. 

Dow.  &  %.   . 

East      .     .     . 

El.  &  Bl.  .     . 

Ewell  on  Dis. 
of  Inf.   .     . 


Ex. 
Ex.  Div. 


Grant's  Cas.  . 
Gratt.  .  .  . 
Gray     .     .     . 


Cowpor's  English  King's  Bench  l?oports. 

1771-177.S. 
Cranch's   United    States   Supreme   Court 

Reports,  1800-181,5, 
Croke's   English   King's   Bench  Reports, 

1,582-1G41. 
Crompton  and  Jcrvis'a  English  Exchequer 

Reports,  1830-18:32. 
Crompton,  Mceson  and  Roscoe's  English 

Exchequer  Reports,  1834-1836. 
Cushing's  Massachusetts  Reports,   1848- 

1853. 

DeGex,  Macnaghten  and  Gordon's  English 
Chancery  Reports,  1851-18.57. 

Denio's  New  York  Reports,  1845-1848. 

Dillon's  United  States  Circuit  Court  Re- 
ports, 1870-1878. 

Douglass's  English  King's  Bench  Reports, 
1778-1784. 

Dowling  and  Ryland's  English  King's 
Bench  Reports,  1821-1827. 

East's    English    King's    Bench   Reports, 

1801-1812. 
Ellis   and    Blackburn's   English   Queen's 

Bench  Reports,  1852-1858. 
E well's  Leading  Cases  on  the  Disabilities 

of    Infancy  and   Coverture.     Chicago, 

187G. 
English   Exchequer   Reports,   1847-1856. 
English  High  Court,  Exchequer  Division, 

Reports,  1875- 

Grant's   Pennsylvania  Cases,  1852-1863. 
Grattan's  Virginia  Reports,  1844-1881. 
Gray's  Massachusetts  Reports,  1854-1860. 


2^)6  TABLE*  OF    AHBUEVIATIONS. 

Halst Ilalstead's   New  Jersey  Reports    (Law), 

1821-1831. 

H.  Black,  .  .  Henry  Blackstone's  English  Common  Pleas 
Reports,  1 788-1 79G. 

Hill       ....  Ilill's  New  York  Reports,  1841-1844. 

H.  L.  Cas.      .     .  English  House  of  Lords  Cases,  1847-1865. 

Hob Hobart's  English  King's  Bench  Reports, 

1G03-1625. 

How Howard's  United   States  Supreme  Court 

Reports,  1843-18G0. 

How.  St.  Tr.  .     .  Howell's  English  State  Trials,  11G3-1820. 

Hurl.  &  C.  .  .  Hurlstone  and  Coltman's  English  Ex- 
chequer Reports,  1862-18G5. 

Hurl.  &  N.  .  .  Hurlstone  and  Norman's  English  Ex- 
chequer Reports,  1856-1861. 

Ill Illinois    Supreme    Court   Reports,    1819- 

Ind Indiana   Supreme   Court   Reports,   1848- 

Johns Johnson's  New  York  Reports,  1806-1823. 

Kas Kansas    Supreme   Court    Reports,   1862- 

Langd.  Cas.  on  .  Langdell's   Select  Cases  on   the  Law  of 

Con.       .     .     .       Contracts  (2nd  ed.).     Boston,  1879. 
Lawson  Cont.     .  Lawson  on  Contracts  of  Common  Carriers. 

Carr.      ...       St.  Louis,  1880. 
Lawson  Us.    .     .  Lawson   on    Usages    and    Customs,  with 

&  C.      ...       Illustrative  Cases.     St.  Louis,  1881. 
Ld.  Raym.      .     .  Raymond's  (Lord)  English  King's  Bench 
Reports,  1694-1734. 

L.  J.  (Exch  or  .  ^^    English  Law  Journal,  1866- 

Ch.)       ...  ^ 

L.  R.  C.  P.     .     .  English  Law  Reports,  Court  of  Common 

Pleas,  1866-1875. 
L.  R.  Ex.  .     .     .  English  Law  Reports,  Court  of  Exchequer, 
1866-1875. 


TABLE    OF   ABBREVIATIONS.  297 

L.  R.  II.  L.   .     .  English  Law   Reports,  House   of  Lords, 

1800-1875. 
L.  R.  Q.  B.    .     .  English  Law  Reports,  Court  of  Queen's 

Bench,  1866-1875. 

Mac.  &  G.  .  .  Macnaghten  and  Gordon's  English  Chan- 
eery  Reports,   1849-1851. 

Mason  ....  Mason's  United  States  Circuit  Court  Re- 
ports, 1816-1830. 

Mass Massachusetts   Supreme    Judicial    Court 

Reports,  1804-1822  ;  1807- 

Me Maine  Supreme  Court  Reports,  1820- 

Mec.  &^y.  .  .  Meeson  &  Welsby's  English  Exchequer 
Reports,  1836-1847. 

Mete Metcalf's   Massachusetts  Reports,   1840- 

1847. 

Mich Micliigan  Supreme  Court  Reports,  1847- 

Mo Missouri  Supreme  Court  Reports,  1821- 

N,  J.  (L.)     .     .  New    Jersey   Supreme     Court     Reports, 

1790- 
N.  Y New  York   Court  of    Appeals    Reports, 

1847- 

Paige  ....  Paige's  New  York  Chancery  Reports. 
1828-1845. 

Peak.  Ad.  Cas.  .  Peake's  English  Nisi  Prius  Cases  (addi- 
tional), 1790-1812. 

Pet Peters'  United  States  Supreme  Court  Re- 
ports, 1827-1842. 

Pick Pickering's  Massachusetts  Reports,  1822- 

1842. 

P.  Wms.  .  .  .  Peere  TVilliams's  English  Chancery  Re- 
ports, 1695-1736, 


298  TABLE    OF   AHBRKVIATIOXS. 

Q.  B English   Queen's  Bench    Keports,    1841- 

1852.^ 

Q.  B.  Div.  .  .  English  Hi^i  Court,  Queen's  Bench  Divi- 
sion, Reports,  1875- 

Salk Salkeld's  English  King's  Bench  Reports, 

1689-1712. 

Serg.  &  R.  .  .  Sergeant  and  Rawle's  Pennsylvania  Re- 
ports, 1814-1828. 

Shirley  Ld.  Cas.  .  Shirley's  Leading  Cases  Made  Easy.  Lon- 
don, 1880. 

Sid Siderfin's  Enghsh  King's  Bench  Reports, 

1G57-1G70. 

Skin Skinner's  English  King's  Bench  Reports, 

1681-1698. 

Smith'sLd.  Cas.  .  Smith's  Leading  Cases.^ 

Stra Strange's  English  King's  Bench  Reports, 

1716-1749. 

Taun Taunton's   English    Common   Pleas    Re- 
ports, 1808-1819. 
Taylor's  L.    .     .  Taylor's  Treatise  on  Landlord  and  Tenant. 

&  T.      ...       (7th  ed.)  Boston,  1879. 
Term  Rep.     .     .  Term    Reports,    English    King's   Bench, 

1785-1800.3 
Thomp.Ld.  Cas. .  Thompson's  Leading  Cases  on  Carriers  of 

Carr.  Pass.      .       Passengers,     i^t.  Louis,  1880. 
Thomp.  Ld.  Cas. .  Thompson's  Leading  Cases  on  Negligence. 

Neg.       ...       St.  Louis,  1880. 


1  This  series  is  sometimes,  though  improperly,  cited,  Ad.  &  E. 
(x.  s.)  after  the  reporters,  Adolphus  and  Ellis. 

2  The  seventh  American  edition  of  this  great  work  was  published 
in  Philadelphia  in  1872. 

^  This  series  is  sometimes  cited  Durn.  «&  E.,  after  the  names  of 
the  reporters,  Durnford  and  East 


TABLE    OF    ABBREVIATIONS.  299 

U.  S United    States   vSupreme   Court    Reports, 

1875- 

Ves Vesey's  English  Chancery  Reports,  1789- 

1816. 
Vt Vermont  Supreme  Court  Reports,  1826- 

Wall Wallace's  United   States   Supreme  Court 

Reports,  1863-1875. 
Wall.  jr.    .     .     .  Wallace's    United    States    Circuit   Court 

Reports,  1842-1862. 
Wash.   C.  Ct.     .  Washington  United  States  Circuit  Court 

Reports,  1803-1827. 
W.  Black.      .     .  Blackstone's   English  Bang's   Bench  Re- 
ports, 1746-1780. 
Week.  Rep.    .     .  EngHsh  Weekly  Reporter,  1853- 
Wend.        .     .     .  Wendell's  New  York  Reports,  1828-1841. 
Wheat.       .     .     .  Wheatou's  United  States  Supreme  Court 

Reports,  1816-1827. 
Wils Wilson's  English  lOng's  Bench  Reports, 

1742-1774. 
Willes  ....  Willes's  EngUsh  Conunon  Pleas  Reports, 

1737-1760. 


INDEX. 


ABSENCE. 

Party  absent  seven  years  without  being  heard  from,  presumed  to 
be  dead,  278,  279. 

ACCEPTANCE.     (See  also  Sales.) 
Offer  does  not  make  a  contract  till  accepted,  1,2. 
Offer  cannot  be  retracted  after  acceptance,  3,  4. 
Proposer  may  prescribe  time,  place  and  form  of  acceptance,  6,  7. 

But  not  of  refusal,  8. 
Offer  must  be  accepted  within  reasonable  time,  9,  10. 
Acceptance  must  be  identical  with  terms  of  offer,  19,  20 
Acceptance  of  altered  proposal,  20,  21. 
Of  goods  under  Statute  of  Frauds,  G8,  69,  70. 

ACCIDENT. 

Will  excuse  party  from  performing  contract  when,  113,  114. 
Party  not  liable  for  injury  resulting  from  unintentional  accident, 

215. 
Presumption  of  negligence  from  happening  of,  224,  225. 

ACT  OF  GOD. 

Contract  made  impossible  by,  promisor  is  discharged,  114,  115. 
But  not  where  performance  is  only  •'  dangerous,"  116,  117. 

ACTION. 

Forbearing  to  bring  suit  sufficient  consideration  for  contract,  32. 

But  not  if  there  be  no  legal  cause  of  action,  32,  33. 
Local  and  transitory  actions  distinguished,  283,  284. 

ACTORS  AND  ACTRESSES.     (See  Theatre.) 

ADMINISTRATION  OF  JUSTICE. 
Contracts  to  impede  the,  illegal,  89,  90. 

Agreements  to  refer  dispute  to  arbitration,  when  legal,  91,  92 
Wager  as  to  whether  prisoner  will  bo  convicted,  illegal,  97. 

ADMISSIONS.     (See  Evidence.) 

AGENCY.     (See  Pkincipal  and  Agent.) 

(301) 


302  INDEX. 

ALTERATION. 
Acceptance  of  altered  proposal,  20,  21. 
Unauthorized  alteration  of  bill  of  exchange  vitiates  it,  158,  159. 

AMBASSADORS. 
Goods  in  houses  of,  privileged  from  distress,  184, 

AMBIGUITIES.     (See  Oual  Evidence.) 

ANIMALS. 
Wild  animals  cannot  be  distrained  for  rent,  184. 
Liability  of  owner  for  injuries  by,  218. 

"ANOTHER." 
Promise  to  answer  for  debt,  etc.,  of,  C3,  64. 

APPORTIONMENT. 
An  entire  contract  cannot  be  apportioned,  123,  124. 
Relaxation  of  this  rule,  124,  yiote, 

ARBITRATION. 
Agreements  to  refer  disputes  to,  when  legal,  91,  92. 

ASSENT.     (See  Acceptance.) 

AUCTIONS. 
Bidding  at,  5,  6. 

BAGGAGE. 
What  is  "  baggage  "  for  which  carrier  is  responsible,  212,  213. 

BAILMENTS.     (See  also  Carriers  ;  Innkeepers.) 

The  different  kinds  of,  194,  195,  19G,  197,  198. 

BANK  BILLS.     (See  Negotiable  Paper.) 

BANKER. 

Not  liable  for  paying  altered  check  negligently  drawn,  160,  161. 
Liable  to  action  for  dishonoring  customer's  check,  255. 

BETTING.     (See  Wagers.) 

BILLS  OF  EXCHANGE.     (See  Negotiable  Paper.) 

BILLS  OF  LADING.     (See  Negotiable  Paper.) 

BOOKS. 
Entries  made  by  deceased  party  in  course  of  business  admissible 
in  evidence,  276. 
Or  if  against  his  interest,  277,  278. 


INDEX. 


303 


BOT^ROWER. 
Liability  of  borrower  of  chattel,  19G. 

BREACH  OF  PROMISE  OF  MARRIAGE. 
Infant  may  sue,  but  cannot  be  sued  for,  43,  44, 
Promise  to  marry  not  within  Statute  of  Frauds,  59. 
On  promise  to  marry  at  a  particular  time,  action  may  be  brought 

before  that  time  has  arrived,  118,  119. 
Action  will  lie  for,  120. 

Express  promise  need  not  be  shown,  120,  121. 
What  are  e;ood  causes  for  breaking  off  engagement,  121,  122. 
Party  cannot  act  on  rumors  as  to  conduct  of  other,  122. 
But  may  plead  his  or  her  conduct  after  engagement  was  broken 
off,  122,  123. 

BRIEF. 

A  model  brief,  89. 

BUGS.     (See  Fuunisiied  House.) 

CARRIERS. 
Carrier  of  goods  is  an  insurer,  198. 
Responsibility  of   carrier  of   passengers  for    defective  vehicle, 

202,  203. 

The  responsibility  of  carriers  of  goods  and  passengers  compared, 

203,  note. 

Duty  of,  to  follow  time  tables,  204. 

Power  of  carriers  to  limit  their  liability  by  notice,  205. 

Liability  for  injury  to  free  passenger,  207,  208. 

Travelling  on  "free  pass"  with  condition,  209,  210. 

Who  carrier  may  refuse  to  carry,  210,  211. 

What  is  "  baggage  "  for  which  carrier  is  responsible,  212,  213,  214. 

CHECKS.     (See  Negotiable  Paper.) 

CHILDREN.     (See  Infancy.) 

CHRISTIANITY. 

Contract  in  furtherance  of  attacks  on,  illegal,  92,  93. 

COHABITATION. 
Past  cohabitation  no  consideration  for  promise,  37,  38. 
Promise  to  pay  money  for  future  cohabitation,  illegal,  37,  38. 

COMMODATUM. 
Defined  and  explained,  196. 


304  INDEX. 

COMrETITION. 

Contracts  to  restrain,  illegal,  87,  88. 

COMPOSITION. 
No  consideration  for  agreement  to  accept  part  of  debt  in  payment 
of  whole,  85,  36. 

CONSIDERATION. 

Always  necessary  to  support  a  contract,  28,  29. 
Its  adequacy  is  immaterial,  29,  30. 
Consideration  must  be  real,  30,  31. 
Forbearance  to  sue  sufficient,  32. 

But  not  if  there  is  no  legal  cause  of  action,  32,  33. 
Promise  to  do  what  party  is  bound  to  do  insufficient,  34,  35,  36. 
Moral  obligation  not  suflicient,  3G,  37,  38,  05. 
Past  consideration  will  not  support  a  promise,  38,  39. 

Unless  there  was  a  previous  request,  39,  40. 
Labor,  though  unsuccessful,  a  sulHcient,  40. 
Must  be  expressed  in  memorandum  retiuired  by  Statute  of  Frauds, 
62,  63. 

CONSTRUCTION. 
Contracts  are  construed  liberally,  119. 

CONTRACTS.     (See    Acceptance;    Consideration;  Proposal; 
Statute  of  Frauds,  and  the  various  special  titles.) 

CONTRIBUTION. 
A  defendant  in  tort  cannot  recover  contribution  from  co-aefend- 
ant,  269,  270. 

CONTRIBUTORY  NEGLIGENCE.     (See  Negligence.) 

COVICNANTS. 

What  covenants  in  deed  "  run  with  the  land,"  178,  179,  180. 
Condition  in  lease  if  once  waived  is  waived  altogether,  180,  181. 

CORPORATIONS. 
Liable  on  contracts  not  under  seal,  53,  54,  55. 

COURTS.     (See  Administration  of  Justice.) 

CREDIT.     (See  also  Statute  of  Frauds.) 
Liability  for  falsely  eulogizing  another's  credit,  245,  246,  247, 

248. 

CUSTOM.     (See  Usages  and  Customs.) 


ENDEX.  305 

DAMAGE. 

"  rnjury"  without  damage  is  actionable,  252,  253. 

But  not  damage  when  there  is  no  "  injury,"  253,  254,  255. 

DAMAGES. 
Measure  of  damages  on  breach  of  contract,  125, 12G. 
Exorbitant  agreements  as  to  damages  will  not  be  enforced  126, 

127. 
Damages  in  actions  of  tort,  200,  207,  208,  209. 

DAJS'GER. 
That  performance  of  contract  is  made  dangerous  by   "act  of 
God  "  does  not  excuse,  116,  117. 

DAY. 

Several  offences  committed  on  same  day ;  one  penalty  only  recov- 
erable, 261. 

DEATH. 

Of  principal  revokes  agent's  authority,  140. 

Party  absent  seven  years  without  being  heard  from  presumed  to 
be  dead,  278,  279. 

«'  DEBT,  DEFAULT,  OR  MISCARRIAGE  OF  ANOTHER." 
Promise  to  answer  for,  under  Statute  of  Frauds,  57,  58,  63,  64. 

DEPOSITUM. 

Defined  and  explained,  195. 

DISCHARGE.     CSee  Pekfokmance.) 

DISTRESS. 
What  goods  on  premises  are  privileged  from  distress  for  rent, 

182,  183,  184,  185. 

DIVORCE. 

Does  not  affect  life  insurance  previously  effected,  189,  190,  191, 
102,  193. 

DRAINS.     (See  Fuknished  House.) 

DYING  DECLARATIONS.     (See  Evidence.) 

ELECTIONS. 

Wagers  on  result  of,  void,  97. 

Action  against  election  officers  for  refusing  vote,  252,  253. 

20 


306  INDEX. 

ESTOPPEL. 
Former  judgment  recovered  subsequently  binding  when,  280. 
Party  estopped  from  denying  wliat  he  lias  said  underhand  and 

seal,  281. 
And  also  frr)m  denying  statements  ou  which  others  have  acted, 

281,  282. 

EVIDENCE.     (See  Oral  Evidence.) 
Presumption  of  negligence  from  happening  of  accident,  224,  22S. 
Presumption  of  value  against  spoliator,  252. 
Hearsay  evidence  generally  inadmissible,  271,  et  aeq. 

Except  as  to  matters  of  public  interest,  274. 

Or  on  matters  of  pedigree,  274,  275. 

Or  admission  by  party  or  agent,  275. 

Or  confession  of  person  charged  with  crime,  276. 

Or  dying  declarations,  275. 

Or  if  part  of  the  transaction,  i.e.  res  gestae,  275. 

Or  declaration   of  deceased  party  in  the  course  of  his 
business,  276. 

Or  against  his  interest,  277,  278. 
Presumption  of  absence  from  death,  278,  279. 

FALSE  KEPRESENTATIONS. 

Railroad  guilty  of,  in  publishing  incorrect  time  tables,  205. 
Liability  for  making  false  representations  on  which  another  acts, 

2-45,  2-tG,  247,  248,  249,  250. 
Party  estopped  from  denying  statements  on  which  another  has 

acted,  281,  282. 

FINDER. 

Of  property  has  title  against  every  one  but  real  owner,  251,  252. 

FIRE.     (See  also  Insurance.) 
Destruction  of  hall  by  fire,  discharges  agreement  to  let  it,  when, 

113,  114. 
Rent  is  payable  for  full  term,  though  premises  burn  down,  165. 
Liability  of  railroad  for  spread  of,  241,  242. 

FIRE-ARMS.     (See  Warranty.) 

FIRE  INSURANCE.     (See  Insurance.) 

FIXTURES. 
Right  to  fixtures  annexed  to  land  by  tenant,  174,  175,  176,  177. 
Cannot  be  dis    ained  for  rent,  183. 


INDEX.  307 

FOENICATION. 
Charging  women  with,  not  actionable  per  se,  263,  264. 

FRAUDULENT  CONVEYANCES. 

The  law  as  to,  128,  129,  130. 

FREE  PASS.     (See  Carrieks.) 

FURNISHED  HOUSE. 
That  furnished  house  is  infested  with  bugs  good  ground  for  tenant 

leaving,  IGS,  1G9. 
So  as  to  defective  drainage,  169. 

GAMBLERS. 
May  be  excluded  by  carrier  from  train,  210,  211. 

«' GOODS,  WARES  AND  MERCHANDISE." 
Stocks  arc  within  these  words,  65,  66. 
Goods  not  in  existence,  66,  67. 
Value  of  goods,  67,  68. 

GRATUITOUS  SERVICE. 
Party  undcrtakiug  to  do  thing  without  reward,  is  responsible  for 

negligence,  194. 

GUARANTY.     (See  Credit;   Statute  off  Frauds;   Warranty.) 

GUEST. 
Traveller  boarding  at  hotel  by  the  week  is  a,  201. 

HEARSAY.     (See  Evidence.) 

HIGHWAYS. 
Rights  of  public  over,  284,  285. 

HIRER. 
Of  chattels  liable  only  for  negligence,  198. 

HOUSE.     (See  also  Furnished  House;  Landlord  and  Tenant.) 

A  man's  house  is  his  castle,  258,  259,  260. 

HUSBAND  AND  WIFE. 
When  husband  liable  for  debts  of  wife,  45,  46,  47,  48,  49,  60. 

ILLEGAL  CONTRACTS.     (See  also  Immoral  Contracts.) 
To  pay  woman  for  future  cohabitation,  37,  38. 
To  prevent  competition  for  public  service,  87,  88. 
To  influence  legislative  bodies  or  public  ofQcers,  88,  89. 
To  impede  administration  of  justice,  89,  90. 


308  INDEX. 

ILLEGAL  CONTRACTS  —  Continued. 
To  submit  disputes  to  arbitration,  91,  92. 
To  rent  rooms  for  lecture  attacking  Christianity,  92,  93. 
Executing  bond  on  Sunday,  93,  94. 
Wagers  wlienleiral  and  wlien  illegal,  96,  97,  98. 
In  restraint  of  trade,  98,  99,  100,  101,  102. 
In  restraint  of  marriage,  102,  103. 
To  bring  about  marriage,  103,  104,  105. 
Court  will  aid  neither  party  to  illegal  contract,  106,  107. 
Except  where  illegal  purpose  is  not  complete,  108,  109. 

IMMORAL  CONTRACTS. 
Supplying  goods  to  prostitute  for  purpose  of  her  trade,  95,  96. 

IMMORALITY. 
Charge  of,  not  actionable  per  se,  264-,  265,  266,  note. 

IMPLEMENTS  OF  TRADE. 

Are  privileged  from  distress,  184. 

IMPOSSIBILITY  OF  PERFORMANCE.     (See  Performance.; 

«'  IMPUTED  NEGLIGENCE."     (See  Negligence.") 

INDECENCY. 
Wagers  on  indecent  subjects  void,  97. 

INFANCY. 
Contracts  of  iafants  void,  valid  and  voidable,  41,  42. 

Except  for  necessaries:  what  are  "necessaries,"  42,  43. 
Infant  may  sue,  but  cannot  be  sued  for  breach  of  promise  to 

marry,  43,  44. 
Cliild  of  tender  years  not  legally  guilty  of  contributory  negli- 
gence, 237,  238. 
.  But  negligence  of  parent  may  be  "  imputed  "  to  child,  239. 

INJUNCTION.     (See  Theatke.) 

INN-KEEPERS. 

Liability  of  inn-keepers  for  goods  of  guest,  199. 

Traveller  boarding  at  hotel  by  the  week  is  a  "  guest,"  200,  201. 

INSANITY. 

Lunatics  not  liable  on  their  contracts,  when,  50,  51,  52, 
But  liable  for  torts,  52,  53. 

INSURANCE. 

Concealment  of  material  facts  by  insurer,  186,  187. 

Fire  insurance  —  customary  use  of  prohibited  article,  187,  188. 

Who  may  insure  life  of  another,  189,  190,  191,  192,  193. 


INDEX. 


309 


JOINT  AND  SEVERAL  LIABILITIES. 
Acknowledgment  by  one  of  two  joint  makers  of  note  binds  the 

other,  1C3,  1C4. 
One  joint  wrong-doer  can  not  recover  from  otlier,  2G9,  270. 

LABOR. 
Though  unsuccessful  is  a  sufficient  consideration  for  a  contract,  40. 

LANDLORD  AND  TENANT. 

Renting  rooms  for  lecture  attacking  Christianity,  illegal,  92,  93. 
Destruction  of  hall  by  Are  discharges  agreement  to  rent  it,  when, 

113,  114. 
Paying  rent  for  premises  destroyed  by  fire,  165. 
No  warranty  on  part  of  landlord  as  to  condition  of  house  rented, 
166,  167. 
Except  the  house  is  a  furnished  one,  168,  169. 
Effect  on  tenant  of  landlord  mortgaging  the  premises,  169,  170, 

171. 
Tenant  entitled  to  way  going  crop  by  custom,  171,  172. 
Leases  for  more  than  three  years  must  be  in  writing,  172,  173,  174. 
But  parol  agreement  may  regulate  terms  in  other  respects, 
172,  173,  174. 
The  law  as  to  fixtures  placed  on  land  by  tenant,  174, 175,  176,  177. 
What  covenants  in  lease  "run  with  the  land,"  178,  179,  180. 
Condition  in  lease  if  once  waived  is  waived  altogether,  180,  181. 
What  goods  on  premises  are  privileged  from  distress  for  rent, 

182,  183,  184,  185. 
Injury  to  one  coming  on  another's  premises,  221,  222. 
Tenant  generally  liable  for  injuries  caused  by  non-repair  of  build- 
ing, 223. 

Exceptions  to  this  rule,  223,  224,  note. 

LANDS. 

What  is  an  "  interest  in  or  concerning  lauds  "  within  Statute  of 

Frauds,  59,  60. 
Liability  for  injury  caused  by  removing  support  of  land,  220,  221. 

LAW. 
Where  law  renders  performance  of  contract  impossible,  promisor 
is  excused.  111, 112. 
LEASE.     (See  Landloud  and  Tenant.) 

LEGISLATURE. 
Agreement  to  influence  legislative  bodies,  illegal,  88,  89. 


310  INDEX. 

LIBEL. 

Distinction  between  libel  and  slander,  2G6,  note. 

LIMITATION. 

Acknowledgment  by  one  joint  maker  of  note  binds  other,  163, 164. 

LOCAL  ACTION.     (See  Action.) 

LOCATIO  REI. 

Defined  and  explained,  198. 

LOCATIO  OPERIS  FACIENDI. 
Deflued  and  explained,  198. 

LUNATIC.     (See  Ixs^vnity.) 

MAGISTRATE. 

Action  against,  for  assessing  wrong  penalty,  261. 

MALICIOUS  PROSECUTION. 
Action  for,  when  sustainable,  262,  203. 

MANDATUM. 

Deliued  and  explained,  195. 

MARRIAGE.     (See  also  Breach  of  Puomise  of  Marriage;  Hus- 
band AND  Wife. 
Wager  that  a  party  will  not  marry,  void,  97. 
Contracts  in  restraint  of,  illegal,  102,  103. 
Contracts  to  bring  about,  void,  103,  104,  105. 

MASTER  AND  SERVANT.     (See  also  Principal  and  Agent.) 
On  contract  of  hiring  to  begin  at  a  particular  time,  if  master  re- 
^  fuses  to  perform,  servant  may  bring  action  before  that  time 

arrives,  117,  118. 
Inn-keeper  liable  for  goods  of  master  in  possession  of  servant, 

201. 
Responsibility  of  master  for  acts  of  servant,  225,  22G. 
Person  not  liable  for  negligence  of  independent  contractor,  227, 
228. 
Exceptions  to  this  rule,  228,  229,  note. 
Liability  of  master  for  injury  to  fellow  servant,  229,  230,  231,  232. 
Driver  of  horse-car  not  servant  of  passengers,  235,  236. 
Action  for  inducing  servant  to  break  contract  268,  269. 

MEASURE   OF  DAMAGES.     (See  Damages.) 

MISTAKE. 
As  to  person  contracting,  23,  24. 


INDEX.  311 

MISTAKE  —  Continued. 
As  to  thing  contracted  for,  25. 

Money  paid  under  mistake  of  law  cannot  be  recovered,  130,  131. 
Different  if  the  mistalie  is  one  of  fact,  131,  132,  7iote. 

"  MONTK-M.VN."     (Sec  Gamblkus.) 

MORAL  OBLIGATION.     (See  Consideration.) 

MORTGAGE. 
Mortgage  of  property,  mortgagor  remaining  in  possession,  128, 

129,  130. 
Effect  on  tenant  of  mortgage  of  premises  by  landlord,  1G9,  170, 

171. 

MUTUUM. 
Defined  and  explained,  196. 

NECESSARIES.     (See  Infancy;  Husband  and  Wife.) 

NEGLIGENCE.     (See  also  Carriers.) 

Banlcer  not  liable  for  paying  altei'ed  check  negligently  drawn,  160, 

IGl. 
Person  undertaking  gratuitous  service  is  liable  for  negligence, 

194,  195. 
Carrier  cannot  exempt  himself  from  liability  for  negligence,  210. 
Party  not  liable  for  iujury  caused  by  unintentional  accident,  215. 
One  accumulating  dangerous  things  on  land  liable  if  they  escape 

and  do  iujury,  21 G,  217. 

Unless  escape  was  caused  by  act  of  God,  217. 
Or  of  third  party,  217. 
Liabilities  for  injuries  by  animals,  218. 
Selling  poison  with  harmless  label,  219. 
Removing  support  of  laud,  219,  220. 
Injury  to  person  coming  on  another's  premises,  221,  222. 
Injury  caused  by  non-repair  of  building,  223. 
Presumption  of  negligence  from  happening  of  accident,  224. 
Liability  of  master  for  wilful  acts  of  servant,  225,  226. 
Employer  not  liable  for  negligence  of  iudepeudent  contractor,  227. 
Liability  of  master  for  injury  to  fellow-servant,  229,  230,  231,  232. 
Contributory  negligence  bars  party's  action  for  injury,  233,  234. 

Exception  to  this  rule,  234,  235. 
Imputed  negligence,  235,  236. 
Contributory  negligence  of  children,  237,  238 
Contributory  negligence  of  parent,  239. 
Proximate  and  remote  cause,  240,  241,  242. 


312  INDEX. 

NEGOTIABLE  PAPER. 

A  promissory  note  must  be  payable  at  a  time  certain,  153,  154. 

Bank  notes  pass  a  good  title  by  delivery,  154,  155. 

Who  is  a  "  holder  for  value ;"  antecedent  debt  a  good  considera- 
tion, 155,  156. 

Notice  of  dishonor,  when  necessary,  157,  158. 

Unauthorized  alteration  of  bill  of  exchange  vitiates  it,  158,  159. 

Negligence  in  drawing  check,  160,  161. 

Stoppage  in  transitu  defeated  by  bonajide  indorsement  of  bill  of 
lading,  161,  162,  163,  note. 

NOTICES.     (See  Carriers.) 

NUISANCE. 
Distinction  between  injury  to  property  and  personal  discomfort, 

243,  244. 
Liability  for  injury  to  property  by  smoke  from  factory,  243,  244, 

245. 

OFFER.     (See  Proposal.) 

OFFICERS.     (See  Public  Officers.) 

ORAL  EVIDENCE. 
Contracts  contained  in  several  documents  cannot  be  explained 

by,  71,  72,  73. 
Not  admissible  to  vary  written  contract,  74,  75. 

But  admissible  to  show  that  there  is  no  agreement  at  all,  76. 
Latent  ambiguity  may  be  explained,  77,  78. 

But  not  patent  ambiguity,  78,  79, 
Supplementary  contract  may  be  shown  by,  79,  80. 
Usages  of  trade  may  be  shown,  80,  81,  82,  83,  84,  85. 

But  not  if  they  contradict  contract,  85,  86. 

PARENT  AND  CHILD.     (See  also  Infancy.) 

Son  not  bound  to  pay  past  expenditures  of  parent,  36,  37. 

Moral  obligation  not  sufficient  consideration  for  contract,  36,  37. 

PARTNERSHIP. 

When  persons  liable  as  partners,  150,  151,  152. 

PASSENGERS.     (See  Carriers.) 

PAST  CONSIDERATION.     (See  Considbration.) 

PAWNS. 
The  law  as  to,  197. 


INDEX. 


313 


PAYMENT. 
Agreement  to  receive  part  of  debt  in  payment  of  whole,  nudum 
pactum f  35,  36. 

PEDIGREE,     (See  Evidence.) 

PENALTIES. 
Penalties  and  liquidated  damages,  126,  127. 
One  penalty  only  recoverable  for  several  offences  committed  on 
same  day,  261. 

PENNSYLVANIA. 
Decisions  of  Supreme  Court  of,  on  railroad  questions  viewed  with 
suspicion,  23G,  note. 

PERFORMANCE. 

"Performance,"  under  Statute  of  Frauds,  means  completion,  72. 

Act  of  one  party  making  performance  impossible  by  other  dis- 
charges him,  110. 

Rendered  impossible  by  act  of  law  discharges  party,  111,  112. 

Rendered  impossible  by  accident;  when  party  discharged,  113, 
114. 

Rendered  impossible  by  act  of  God,  party  is  discharged,  114,  115. 
But  not  where  performance  is  not  Impossible  but  dangerous, 
116,  117. 

Renunciation  of  contract  by  one  party  before  time  of  perform- 
ance gives  other  right  to  sue  instanter,  117,  118,  119. 

Contract  must  be  entirely  performed  or  party  can  recover  noth- 
ing, 123,  124. 
Relaxation  of  this  rule,  124,  note. 

PIGNORI  ACCEPTUM. 
Defined  and  explained,  197. 

PLEADING. 
Certainty  in  pleading  not  so  important  as  formerly,  284,  285. 

POISON. 
Liability  for  selling  poison  with  harmless  label,  219,  220. 

POST. 

Contracts  by,  7,  11,  12,  13,  14,  15,  16. 

PRESUMPTION.     (See  E^^DENCE.) 

PRINCIPAL  AND  AGENT. 

A  special  agent  must  strictly  pursue  his  authority,  139 
Death  of  principal  revokes  authority  of  agent,  140. 


314  INDEX. 

PRINCIPAL  AND  AGENT  —  Continued. 
Contracts  with  agents  of  undisclosed  principals,  141,  142,  143, 

144,  145, 
Party  described  in  contract  "  as  agent "  may  still  be  liable  as  a 

principal,  145,  146. 
Set-off  of  de!)t  of  agent  against  claim  of  principal,  146, 147. 
Agent  exceeding  authority  liable  in  contract,  148,  149. 
Admissions  of  agent  bind  principal,  275. 

PRIVITY. 
Not  necessary  to  support  action,  when,  219,  220,  248,  249,  250. 

PROMISSORY  NOTES.     (See  Negotiable  Papek.) 

PROPOSAL. 
Does  not  make  a  contract  till  accepted,  1,2. 
Cannot  be  retracted  after  acceptance,  3,  4. 
Proposer  may  prescribe  time,  place,  and  form  of  acceptance,  6,  7. 

But  not  of  refusal,  8. 
Must  be  accepted  Avithin  reasonable  time,  9,  10. 
Acceptance  must  be  identical  with  terms  of  offer,  19,  20. 
Acceptance  of  altered  proposal,  20,  21. 
Proposal  to  unascertained  person,  22. 

PROSTITUTE. 
Price  of  goods  supplied  to,  cannot  be  recovered  when,  96,  96. 

PROXIMATE   AND   REMOTE    CAUSE. 

The  "  Squib  "  Case,  240,  241. 

Liability  of  railroad  for  spread  of  fire,  241,  242. 

In  action  for  slander,  266,  267. 

PUBLIC   OFFICERS. 
Agreement  to  influence,  illegal,  88,  89. 

PUBLIC  POLICY.     (See  Illegal  Contracts;  Wagers.) 

RAILROADS.     (See  Caurlers.) 

RECEIPTS. 
The  policy  of  preserving  receipted  bills,  130,  131. 

REFUSAL. 
Proposer  cannot  prescribe  terms  of,  8. 

RELIGION.     (See  Christianity.) 

REPRESENTATIONS. 
Representations  and  warranties,  26,  27. 


INDEX.  315 

RES  GEST^.     (See  Evidence.) 

RESTRAINT   OF  TRADE. 
Contracts  in,  void,  98,  99,  100,  101. 

Unless  restraint  is  partial  and  reasonable,  101,  102. 

RETRACTION. 
Offer  cannot  be  retracted  after  It  is  accepted,  3,  4. 

REWARD. 

Offers  of,  9,  22. 

RUMORS. 
Cannot  affect  rights  of  party,  when,  122. 

SALES.     (See  also  Statute  of  Frauds.) 
When  sale  is  complete,  property  passes  at  once,  132,  133. 

Unless  something  remains  to  be  done,  133,  134. 
When  party  selling  goods  is  presumed  to  warrant  them,  134,  135, 

136,  137. 
Warranty  made  after  sale,  void,  138. 

SATISFACTION. 

Agreement  to  make  a  thing  to  one's  satisfaction,  18,  19. 

SCHOOLS. 
Closing  school  on  account  of  small-pox  does  not  discharge  direc- 
tors from  paying  teacher's  salary,  116,  117. 

SEAL.    (See  Corporations.) 

SEDUCTION. 
Promise  to  pay  woman  a  sum  of  money  for  past  cohabitation, 
nudum  pactum,  37,  38. 

If  for  future  cohabitation  contract  is  illegal,  37,  38. 

SET-OFF. 
Of  debt  of  agent  against  claim  of  principal,  when  allowed,  146, 

147,  148. 

SHEEP. 
Privileged  from  distress  for  rent,  185. 

SHERIFF. 
Action  against,  for  breaking  into  house,  wh«n  maintainable,  258, 
259,  260. 

SICKNESS. 
Epidemic  which  causes  closing  of  school,  does  not  relieve  direc- 
tors from  payment  of  teacher's  salary,  116,  117. 
Contract  of  pianist  to  perform  excused  by,  114,  115. 


316  INDEX. 

SLANDER. 
Defamatory  words,  when  actionable  and  when  not,  263,  264,  265. 
Distinction  between  slander  and  libel,  266,  note. 

SMALL-POX. 
Breaking  out  of,  rendering  it  necessary  to  close  school,  does  not 
discharge  directors  from  paying  teacher's  salary,  116,  117. 
SMOICE.     ("See  Nuisance.) 
STATUTE  OF  FRAUDS. 
The  provisions  of  the,  explained,  56,  57. 
Promise  to  answer  for  "  debt,  default,  or  miscarriage  of  another," 

57,  58,  63,  64. 
Promise  "  in  consideration  of  marriage,"  59. 
What  is  an  "  interest  in  or  concerning  lands,"  59,  60, 
Contracts  "not  to  be  performed  within  a  year,"  60,  61,  62. 

"Performance"  means  completion,  72. 
Consideration  must  be  expressed  in  memorandum,  62,  63. 
Stocks  are  "  goods,  wares  and  merchandise  "  within,  65,  66. 
Goods  not  in  existence,  66,  67. 
Value  of  goods,  67,  68. 

Acceptance  and  receipt  of  goods  under,  68,  69,  70. 
Oral  evidence  not  admissible  to  vary  contract,  74,  75. 
Leases  for  more  than  three  years  required  to  be  in  writing  by, 
172, 173,  174. 
But  parol  agreement  may  regulate  terms  In  other  respects, 
172,  173,174. 

STATUTES. 

Contracts  violating  statutes  are  void,  93,  94, 

"Wagers  when  prohibited  by,  are  void,  98. 
STOPPAGE  IN  TRANSITU. 

Right  to,  defeated  by  bona  fide  indorsement  of  bill  of  lading,  161, 

162,  163,  note. 

SUNDAY. 
Executing  bond  on  Sunday  illegal,  93,  94. 

SUPPORT  OF  LAND.     (See  Lands.) 


THEATRE. 

Contract  of  pianist  to  perform  excused  by  sickness,  114,  115. 
Penalty  in  contract  of  actor  for  failure  to  act,  126,  127. 
Rival  manager  liable  for  inducing  actress  to  break  her  contract, 
268,  269. 


INDEX.  317 

THEATRE  —  Continued. 
Actress  may  be  prevented  by  injunction  from  performing  at  rival 
theatre,  268,  7iote. 

THIEF. 

May  give  good  title  to  stolen  bank-note  l)y  delivery,  154,  155, 

TIME-TABLES.     (See  Carriers.) 
TRADE.     (See  Rkstraint  of  Trade.) 
TRANSITORY  ACTION.     (See  Action.) 

TRESPASS. 

Who  are  trespassers  ab  initio,  250,  257,  258. 

TROVER. 

One  with  right  to  possession  of  chattel  may  maintain,  251,  252. 

TRUST. 

Is  the  cover  of  fraud,  130. 

UNCERTAINTY. 

Terras  of  agreement  must  be  certain,  16,  17,  18. 
Agreement  to  make  a  thing  to  one's  "satisfaction,"  18,  19. 

USAGES  AND  CUSTOMS. 

Oral  evidence  of ,  admissible  to  explain  written  contracts,  80,  81; 
82.  83   84,  85. 
But  not  to  contradict  them,  85,  86. 
Custom  giving  tenant  way-going  crop  valid,  171,  172. 

VADIUM. 

Defined  and  explained,  197. 

VALUE. 

Of  goods  under  Statute  of  Frauds,  67,  68. 

Presumption  of  value  of  thing  as  against  wrong-doer,  252 

VENUE.     (See  Action.) 

WAGERS. 

Legal  at  common  law,  96,  97. 

Unless  against  public  policy,  indecent,  etc.,  97. 
But  generally  prohibited  by  statute,  98. 

WAIVER. 
Condition  in  lease  if  waived  once  is  waived  altogether,  180,  181. 


318'  INDEX. 

WARRANTIES     (See  also  Insurance  ;  Sales.) 
Effect  of  breach  of  warranty,  26,  27. 

No  warranty  by  landlord  as  to  condition  of  premises  leased,  166, 
167. 
Except  in  the  case  of  a  furnished  house,  168,  169. 
Warrant  of  safeness  of  gun  which  afterwards  bursts,  248,  249, 
250. 

WATER-COURSES. 
Injury  to,  not  actionable  when,  253,  254. 

WITNESS. 
Promise  to  pay  witness  more  than  his  legal  fees,  void,  34. 

WRITINGS    (See  Statute  of  Frauds  ;  Oral,  Evidkncb:.) 

YEAR. 

Contracts  not  to  be  performed  within  a,  60,  61,  62. 
"  Performance  "  means  "  completion,"  72. 


UC  SOUTHERN  REGIONAL  LIBRARY  EACH 

AA    000  744  275    9 


